17.III.4.2.6 Non-discrimination

The principle of non-discrimination in relation to data prices was already apparent under MiFID I. During the previous regime, the concept of (1) a reasonable commercial basis; and (2) non-discrimination were two separate concepts. Under MiFID II non-discrimination has become an element of the broader principle ‘reasonable commercial basis’. This is apparent in the MiFID II regulatory technical standards.

In drafting MiFID II on level 1, the concepts of a reasonable commercial basis and non-discrimination were, despite their close relation, two separate concepts. The European Parliament explicitly stated that RMs and MTFs needed to make data available on a reasonable commercial basis and to ensure ‘effective non-discriminatory access to the information’.1

The position changed during the MiFID II level 2-process. First, ESMA proposed that a reasonable commercial basis would become applicable to all MiFID II Data Suppliers (RMs, MTFs, SIs, APAs, and CTPs). The respondents to ESMA’s consultation broadly supported the proposal of ESMA (see paragraph above: ‘scope’).2 Second, ESMA noted that ‘reasonable commercial basis’ needed to include a measure of non-discrimination. It was ESMA’s view that MiFID II Data Suppliers needed to offer the same prices, and other terms and conditions, to all customers who were in the same position, according to published, objective criteria.3 The non-discrimination norm would not be absolute, that is - differentiation of prices would be permitted, as long as the criteria differentiate between different types of customers.4 ESMA added that the MiFID II criteria of a reasonable commercial basis should allow MiFID II Data Suppliers to differentiate between different types of customers ‘where it is reasonable to do so’.5 In other words, ESMA permitted a form of price discrimination, leaving room for MiFID II Data Suppliers to charge different prices for different groups of users.6

ESMA’s position is evident in the final MiFID II-text. The level 1-rules make a distinction between the concept of a reasonable commercial basis and non-discriminatory access in the context of RMs and MTFs. The level 2-rules have transformed the concept of a non-discriminatory into an element of a reasonable commercial basis, therewith expanding the scope of non-discrimination to all MiFID II Data Suppliers. The MiFID II standard of a non-discriminatory basis is not absolute, since this suits with the requirement to provide data on a ‘reasonable’ commercial basis (i.e. a degree of price discrimination is permitted).