Einde inhoudsopgave
EU Equity pre- and post-trade transparency regulation (LBF vol. 21) 2021/9.III.1.7
9.III.1.7 Post-trade transparency requirements and third country transactions
mr. J.E.C. Gulyás, datum 01-02-2021
- Datum
01-02-2021
- Auteur
mr. J.E.C. Gulyás
- JCDI
JCDI:ADS266887:1
- Vakgebied(en)
Financieel recht / Bank- en effectenrecht
Financieel recht / Europees financieel recht
Financiële dienstverlening / Financieel toezicht
Voetnoten
Voetnoten
A similar issue does not arise in the context of the MiFID II equity post-trade transparency requirements for RMs and MTFs. The reason here is that RMs and MTFs are always required to publish MiFID II equity post-trade data for transactions that take place in their systems, including where the transacting parties and/or investment firms executing the orders have a third country dimension (art. 6-7 and recital 7 MiFIR). This means that the RM or MTF equity post-trade transparency rules, for example, also apply to US investment firms where the transaction is concluded in the systems of the RM/MTF). ESMA affirms this reading in ESMA, Q&A on MiFID II and MiFIR transparency topics, 8 July 2020 (ESMA70-872942901-35), Answer 2.
ESMA, Opinion: Determining third-country trading venues for the purpose of transparency under MiFID II/MiFIR, 3 June 2020 (ESMA70-154-165).The criteria include, among other things, that the third-country trading venues operates a multilateral system and has a post-trade transparency regime that ensures that transactions concluded on that trading venue are published as soon as possible after the transaction was executed or, in clearly defined situations, after a deferral period (ibid).
Ibid.
MiFID II does not provide specific guidance on the treatment of transactions with a third country dimension in relation to the MiFID II equity post-trade transparency requirement for investment firms operating outside RMs and MTFs.1 A third country dimension refers to trades executed by EU investment firms outside the EU and trades by branches or subsidiaries of non-EU firms within the EU for the purposes of the MiFID II transparency regime.2 ESMA has provided guidance through a Q&A. The ESMA guidance includes general principles, such as for transactions executed on non-EU venues. ESMA clarifies that only transactions concluded on third-country venues meeting the criteria established by ESMA for ‘comparable third country trading venues’ are not subject to the MiFID II transparency regime.3 ESMA states that transactions concluded on other third-country trading venues need to be reported through an APA.4 For an examination of the ESMA general principles, as well as a detailed explanation of the third-country situations that can arise, reference is made to the ESMA Q&A.5 The lack of MiFID II guidance, as well as the ESMA Q&A, are part of the MiFID II Review. For an examination of the MiFID II Review, reference is made to section IV of this chapter.