9.II.1.4 May RMs and MTFs publish post-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 It seems likely that a similar reasoning applied for post-trade transparency under MiFID I. The CESR advice suggests that also under MiFID II RMs and MTFs can publish equity post-trade data beyond the MiFID II standards.

However, 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 post-trade data compared to others. Whilst a valid argument, this is not the common and most logical view. ‘Not the common view’, because in practice RMs and MTFs publish equity post-trade data beyond the MiFID II standards.2 ‘Not a logical view’, because the former view (i.e. not publish beyond MiFID II standards) would hamper the MiFID II aim of enhancing transparency.3 Another argument is free enterprise. The decision for an RM or MTF to publish equity post-trade data beyond the MiFID II standards should be for the RM/MTF to decide (i.e. free enterprise).4 If an RM or MTF wants to publish equity post-trade data beyond the MiFID II standard this should be – and in fact is – possible. Important in this context is the view of ESMA. ESMA has indicated that the sale of more detailed, or of data-based value-added products, falls outside the MiFID II scope.5