9.V.4.2 Interim conclusion

The ESMA MiFID II Review in relation to third country transactions and the MiFID II equity post-trade transparency regime for investment firms operating outside RMs and MTFs is interesting in at least two ways. First of all, ESMA addresses a common issue in EU equity post-trade transparency regulation, namely a balance. ESMA wants to avoid double reporting (i.e. where the third country trading venue is already sufficiently transparent) as well as adequate equity post-trade transparency from EU investment firms operating outside RMs and MTFs. Recommending to keep the ESMA Opinion, rather than a Level 1 mandate, reflects the aim not to introduce formal EU regulation if this is not required (i.e. reduce burdens for the industry in having to comply with potentially new rules). Second, ESMA shows a favourable approach towards third countries. Somewhat similar to the ESMA MiFID II Review in the context of equity pre-trade transparency, ESMA aims to ensure favourable conditions between EU and non-EU venues. In the area of equity post-trade transparency this is apparent in the ESMA recommendation not to choose for the simpler and shorter ‘negative list’ (i.e. retain the positive list instead). The rationale here is to ensure third country trading venues are not put under pressure to get removed from a negative list.1