9.III.1.8.5 Difference 3: responsibility for making equity post-trade reports public

Under MiFID I investment firms operating outside an RM or MTF could enter into an agreement as to whom would publish the post-trade information. Where an agreement was absent, MiFID I defined who was responsible for publication.1 In drafting MiFID II, ESMA proposed a different system.

ESMA proposed that the responsible person for publishing transactions should always be the seller. The intention of ESMA was to ensure a clear and enforceable regime.2 ESMA proposed an exception to the foregoing where only one of the investment firms party to the transaction is an SI in the given equity instrument and the SI is the buyer. In this situation, ESMA suggested the SI to always publish the post-trade report.3 ESMA gave two reasons for this deviation. First, ESMA noted there might be an expectation on the part of the SI’s client that the SI will be responsible for reporting. Second, the post-trade report would require a venue identification of the SI (see paragraph above). In the unlikely situation that both parties to the transaction are SIs in a given instrument, ESMA proposed the selling firm to report the transaction (following the usual principle of ‘seller reports’).4

As examined above, the ESMA proposal has not made it into the final MiFID II text. MiFID II does not require the publication of SI identity in the equity post-trade data reports (as published through an APA).5 However, the Commission did accept ESMA’s advice when it came to the responsible party for making the equity post-trade data public. The latter is evident in the final MiFID II text. For equity transactions concluded outside an RM or MTF, MiFID II always requires the selling investment firm to publish the post-trade information (through an APA).6 A different system is in place where one of the investment firms is an SI in the given instrument and the buyer. In this situation, the SI needs to publish the equity post-trade information (through an APA).7