16.II.3 Obligations

The MiFID I Directive required RMs, MTFs, and investment firms (including SIs) to make the MiFID I equity pre- and post-trade data available on a reasonable commercial basis.1 The MiFID I Implementing Regulation expanded this requirement by requiring all publication arrangements to make the information available to (a) the public on a (b) non-discriminatory commercial basis at reasonable cost (for the publication arrangements: see paragraph above).2

The MiFID I regime was maximum harmonized, that is – Member States could not impose stricter or more lenient rules. The maximum harmonized nature did not follow explicitly from MiFID I. Instead, it could be conferred from the MiFID I-aims and the used MiFID I-terminology. MiFID I noted that it was appropriate to ensure a harmonized regime in all Member States.3 MiFID I in effect aimed to ensure a regime that was the same for all Member States (i.e. maximum harmonized). The MiFID I-standard of a reasonable commercial basis provided no wording suggesting a deviation from the maximum harmonized nature of MiFID I (e.g. ‘could’ or ‘at least’).4 In effect, the principle of a reasonable commercial basis was maximum harmonized.

The MiFID I-text provided no specifications to explain the meaning of a ‘reasonable commercial basis’, ‘the public’, or ‘non-discriminatory commercial basis at reasonable cost’. However, CESR clarified certain elements through formally non-binding guidelines. CESR noted that the MiFID I equity pre- and post-trade data needed to be ‘made available to all interested parties wishing to see it’ (willing to meet the commercial terms).5 Accordingly, in CESR’s view, ‘the public’ of the MiFID I equity pre- and post-trade data was a broad group, being all interested parties in the data. CESR considered that any investor in the EU needed to be able to access the information on a non-discriminatory basis, whether or not they were located in the same Member State as the publishing entity.6 CESR made clear that the provision of a ‘non-discriminatory basis’ did not preclude making different additional levels of pre- and post-trade data available on different terms.7 The CESR statement shows that different prices were possible among different customer categories (e.g. a volume discount for a customer category that licensed or bought a great amount of MiFID I equity pre- and post-trade data). A similar interpretation was also implied by the term ‘reasonable’. The term ‘reasonable’ implied the possibility of different data prices for different customer categories8 In effect, MiFID I permitted a degree of price discrimination, namely among different customer categories.9

CESR said that the MiFID I equity pre- and post-trade data only needed to be made available, provided that the interested party was prepared to meet the commercial terms. CESR stated that this could mean pay for it.10 CESR provided no guidance on the actual prices or pricing methodology of the data. The actual data prices were a decision for the publication arrangement in question, albeit within the MiFID I boundaries of a ‘reasonable commercial basis’ and ‘non-discriminatory basis’.11