17.III.2 Scope

The scope of the MiFID II-principle of a reasonable commercial basis applies to:

Point (a) notes that the MiFID II-principle of a reasonable commercial basis, in contrast with the previous regime (MiFID I), does not apply to data vendors. 1 Data vendors (currently) fall outside the scope of MiFID II/MiFIR.2 The MiFID II provision of a reasonable commercial basis only applies for APAs and CTPs in the context of equity post-trade data. This reflects the fact that APAs and CTPs have the core task of publishing equity post-trade data (equity pre-trade data can be offered as an additional service. Along similar lines, SIs are only subject to the reasonable commercial basis provision where the SI publishes equity pre-trade data (the MiFID II SI requirements are designed for equity pre-trade transparency. APAs publish the SI post-trade data). Given that MiFID II requires RMs and MTFs to publish both equity pre- and post-trade data,3 it is logical that the MiFID II reasonable commercial provisions apply to RMs and MTFs for both equity pre- and post-trade data.4

Secondly, the principle of a reasonable commercial basis only constrains the data that is mandated by MiFID II.5 The sale of more detailed data, or of data-based value-added products, is not constrained by MiFID II (point b).6 Third, and finally, the reasonable commercial basis-principle applies only where the data is made available at a charge. The MiFID II-rules are not applicable where the market data is made available free of charge.7 ESMA has provided guidance to the latter point. ESMA noted that where data is made available free of charge 15 minutes after publication based on the MiFID II-requirement to do (see below), the data needs to replicate the information published on a reasonable commercial basis, but with a 15 minutes delay.8