17.III.4.2.1 Scope of the rules

The MiFID II-rules specifying a reasonable commercial basis through regulatory technical standards apply equally to all MiFID II Data Suppliers (RMs, MTFs, SIs, APAs, and CTPs).1 The rules do not apply to data vendors. In drafting the level 2-measures many respondents commented that a considerable number of data users obtain data through data vendors. In this case, prices related to data would encompass not only charges by MiFID II Data Suppliers, but also by data vendors.2

ESMA acknowledged this risk, but was also constrained by the fact that data vendors do not fall within the scope of MiFID II. 3 In effect, ESMA could not assist in specifying rules for a ‘reasonable commercial basis’ in the context of data vendors. The ESMA’s Securities Markets Stakeholder’s Group (SMSG) was concerned about this. The SMSG drew ESMA’s attention to the need to regulate data vendors.4 A solution of ESMA for this issue was to address data bought through data vendors by means of the per-user pricing model. As noted, the per-user pricing model requires MiFID II Data Suppliers to charge their data purchased by end-users indirectly through data vendors on a per-user model, instead of on the number of devices receiving data. In effect, an end-user receiving the data from a MiFID II Data Supplier through different channels (e.g. data vendors) would not have to pay for the same data several times.5

Another matter in terms of drafting the regulatory technical standards was to which extent calibration to the MiFID II Data Supplier in question was necessary. As noted, the final MiFID II-rules are identical for the MiFID II Data Suppliers concerned (RMs, MTFs, SIs, APAs and CTPs). The starting point of this was ESMA’s technical advice to the Commission. ESMA proposed that the requirements for a reasonable commercial basis needed to apply equally to all types of entity required making data available on reasonable commercial terms.6 This was despite the fact that RMs and MTFs were considered to have the most market power in data pricing under MiFID I. ESMA was not aware of any significant market power in data pricing when it came to SIs, or APAs or CTPs when these would exist.7 ESMA proposed that the Commission would monitor whether there would be any evidence of abuse of market power. If so, the Commission could consider what form of clarification of a ‘reasonable commercial basis’ might be appropriate to the circumstances of each type of MiFID II Data Supplier.8