17.III.3.5 Non-discrimination for similar types of users

MiFID II Data Suppliers are required to make the MiFID II market data available in a ‘non-discriminatory’ way.1 The element of a non-discriminatory basis is a legacy of MiFID I. The MiFID I-text required MiFID I data to be made available on a non-discriminatory basis at reasonable costs.2 CESR provided a similar clarification in its formally non-binding guidelines.3 New under MiFID II is that the element of non-discrimination is part of the broader concept of a reasonable commercial basis (i.e. non-discrimination is a species of the genus reasonable commercial basis). Compared to the previous regime (MiFID I), MiFID II also takes some additional steps, most notably in the form of more detailed provisions on the meaning of a non-discriminatory basis.

The legal obligation to provide MiFID II equity pre- and post-trade data on a non-discriminatory basis follows from the MiFID II-text, as supplemented by delegated regulations. In the case of RMs and MTFs, the requirement stems from both the level 1 and level 2-text. MiFIR requires RMs and MTFs to make the MiFID II market data public: (a) on a reasonable commercial basis; and (b) ensure non-discriminatory access to the information.4 In addition, the delegated regulations require all MiFID II Data Suppliers (including, but not limited to, RMs and MTFs) to make the MiFID II equity pre- and post-trade data available on a non-discriminatory basis in order to satisfy the reasonable commercial basis-principle. In other words, the level 2-text (delegated regulations) makes non-discriminatory basis a species of the genus reasonable commercial basis.5 For the sake of completeness, there seems to be no difference between the terms ‘non-discriminatory access’ (level 1-text) and ‘non-discriminatory basis’ (level 2-text). The ESMA Q&A, for instance, uses the term ‘non-discriminatory access’ (not: basis) also for APAs and CTPs.6 This suggests that both terms can in this context be used interchangeably.7

MiFID II requires MiFID II Data Suppliers to make MiFID II market data available under certain conditions to ensure that the market data is sold on a non-discriminatory basis. In order to supply the data on a ‘non-discriminatory basis’, MiFID II requires making the market data available: (a) at the same price; (b) on the same terms and conditions to; (c) all customers falling within the same category in accordance with published objective criteria.8

The points (a-c) make clear that MiFID II permits MiFID II Data Suppliers to charge some data users (customers) more than others, as long as the customers are in a different category. In other words, MiFID II permits a degree of price discrimination.9 Where a MiFID II Data Supplier charges different prices to different categories of customers (which is permitted), MiFID II requires this to be proportionate to the value that the market data represents to those customers. MiFID II does not define what ‘proportionate to the value’ means, but requires to take into account the following two elements: (i) the scope and scale of the market data, including the number of financial instruments covered and their trading volume; and (ii) the use made by the customer of the market data, including whether it is used for the customer’s own trading activities, for resale or for data aggregation (use restrictions).10MiFID II also obliges MiFID II Data Suppliers to have ‘scalable capacities’ in place to ensure that data users can obtain timely access to market data at all times on a non-discriminatory basis.11 The terms ‘scalable capacities’ are not defined.