17.IV.2 Scope

The MiFID II-rule to make market data available free of charge 15 minutes after publication applies to: (i) RMs and MTFs; and (ii) APAs and CTPs.1 The rules do not apply to SIs. Neither do the rules apply to data vendors.2 The rationale of excluding SIs from the scope seems to be that the MiFID II-rule is focused mainly on reducing the costs of equity post-trade data (the SI regime is a distinct equity pre-trade transparency regime).3 The exclusion of data vendors from the MiFID II-rule fits with the broader exclusion of data vendors from the MiFID II scope. The exclusion of data vendors from MiFID II is part of the MiFID II Review (see section V below).

The requirement to publish data free of charge 15 minutes after publication only constrains data that RMs, MTFs, APAs and CTPs need to publish under MiFID II.4MiFID II requires RMs and MTFs to publish both (a) equity pre-trade and (b) equity post-trade data, whereas MiFID II only requires APAs and CTPs to publish (b) equity post-trade data (equity pre-trade data services are permitted, but not required).5 ESMA complemented the MiFID II text with formally non-binding guidance. ESMA expects trading venues (RMs and MTFs), APAs and CTPs ‘to make post-trade data, as well as pre-trade data, available free of charge 15 minutes after publication (…)’.6 In other words, ESMA also expects APAs and CTPs (alongside RMs and MTFs) to make equity pre-trade data available free of charge 15 minutes after publication. The ESMA Q&A makes no reference to free of charge publication for SIs. This has the striking outcome that where an SI publishes SI quotes through proprietary arrangements, instead of through an RM, MTF, or APA (or CTP if authorised), the SI quotes would fall outside the scope of the MiFID II-rule. By contrast, SI quotes would have to be made available free of charge 15 minutes after publication in case published through an APA.

The MiFID II rule to make data free of charge 15 minutes after publication only applies to the MiFID II equity pre- and post-trade data that RMs, MTFs, APAs and CTPs need to publish.7 The sale of more detailed data, or of data-based value-added products (e.g. redistribution of historic data as an added-value service), is not constrained by MiFID II.8