Einde inhoudsopgave
EU Equity pre- and post-trade transparency regulation (LBF vol. 21) 2021/5.II.3.1
5.II.3.1 General
mr. J.E.C. Gulyás, datum 01-02-2021
- Datum
01-02-2021
- Auteur
mr. J.E.C. Gulyás
- JCDI
JCDI:ADS266990:1
- Vakgebied(en)
Financieel recht / Bank- en effectenrecht
Financieel recht / Europees financieel recht
Financiële dienstverlening / Financieel toezicht
Voetnoten
Voetnoten
See in this context also N. Moloney, The Age of ESMA: Governing EU Financial Markets, Hart Publishing, 2018, p. 219/220.
Art. 4(4) MiFIR. During the MiFID II Council Negotiations some Member States suggested to give ESMA more power. It was argued to enable ESMA to make a binding decision rather than give a non-binding opinion in respect of the legality of each waiver. However, according to the Council-Presidency a solution needed to be found that would be in accordance with the ESMA Regulation (Council, Progress Report on MiFIR, 20 June 2011(11536/12), p. 6). The Presidency concerns represent the Meroni-doctrine, which to a certain extent restricts EU agencies (including ESMA) in exercising discretion in their operation (Case 9/56 Meroni v. High Authority (1957-1958) ECR 133). To prevent the illegality of ESMA’s actions, MiFID II merely permits ESMA to give a non-binding opinion on the legality of the waiver. For a further discussion see N. Moloney, ‘EU Financial Governance and Transparency Regulation’, in D. Busch and G. Ferrarini (Eds.), Regulation of the EU Financial Markets: MiFID II and MiFIR, Oxford, 2017.
The binding mediation powers of ESMA are examined in art. 19 ESMA Regulation (No 1095/2010).
Under MiFID II the NCAs are able to waive the MiFID II pre-trade transparency obligations for RMs and MTFs.1 A similar position was in place under MiFID I (see chapter 4, Section IV). New under MiFID II is that the voluntary joint waiver process of MiFID I has been harmonized. Compared to MiFID I, ESMA has obtained a stronger position in the waiver process.2
Under MiFID II a NCA must, before granting a waiver, notify ESMA and the other NCAs of the other Member States about the intended use of each individual waiver. While doing so, the NCA must also provide an explanation regarding the functioning of the waiver.3 Notification of the intention to grant a waiver must be provided not less than four months before the waiver is intended to take effect. Within two months after the notification, ESMA will issue a non-binding opinion to the NCA in question regarding the compatibility of the intended waiver with the MiFID II waiver regime.4 In other words, the NCA can still grant a waiver where ESMA disagrees, since the ESMA opinion is non-binding. The situation is different where an NCA disagrees with the intention of granting a waiver by another NCA. In case a NCA disagrees with the granting of a waiver by the competent authority of another Member State, the former competent authority may refer the matter back to ESMA. In this situation ESMA may exercise its binding mediation powers to settle the matter.5
MiFID II requires ESMA to monitor the application of the equity waivers with the MiFID II waiver regime. ESMA needs to report annually to the Commission on the application of the waivers in practice.6 ESMA is also obliged to review the compatibility of the waivers granted under MiFID I with the MiFID II waiver regime.7 ESMA will issue an opinion to the NCA in question in respect of each of the waivers granted under MiFID I.8 New under MiFID II are also harmonized provisions on how a waiver can be withdrawn. MiFID II states that an NCA may withdraw a waiver if it observes that the waiver is used in a way that deviates from its original purpose or if it believes that the waiver is used to circumvent the MiFID II pre-trade transparency requirements.9 An NCA may withdraw the waiver either on its own initiative or upon request by another competent authority. In case an NCA withdraws a waiver, the NCA must notify ESMA and the other NCAs of such a withdrawal while providing full reasons for the decision.10