On 13 February 2024, the European Securities and Markets Authority (ESMA) issued a public statement concerning Regulatory Technical Standard (RTS) 28 under MiFID II.

The public statement follows an earlier public statement that ESMA issued on 14 December 2022 on the deprioritisation of supervisory actions on the obligation to publish RTS 27 reports after 28 February 2023.

Through this new public statement ESMA is seeking to promote coordinated action by Member State competent authorities (NCAs) in relation to the obligation by investment firms to publish reports on best execution in accordance with Article 27(6) of MiFID II. In particular, Article 27(6) MiFID II requires investment firms to make public the top five execution venues where they executed client orders in the preceding year and information on the quality of execution obtained. RTS 28 (Commission Delegated Regulation 2017/576) further specifies the content and format of this information.

In June 2023, the Council of the EU and the European Parliament reached political agreement concerning the MiFID II/MiFIR review. On 16 January 2024, the European Parliament adopted the agreed MiFID II/MiFIR review level 1 texts. The adopted text of the MiFID II review removes the reporting obligation for investment firms set out in Article 27(6) of MiFID II and investment firms will no longer be required to annually report detailed information on trading venues and execution quality through RTS 28 reports. However, after the date of entry into force of the new Directive amending MiFID II, Member States will have 18 months to transpose it into national law. As a consequence investment firms may still need to make public these reports in 2024 and until the date of transposition of the directive in the relevant Member State.

In light of this the public statement provides that ESMA expects NCAs not to prioritise supervisory actions towards investment firms relating to the obligation to publish RTS 28 reports.

However, ESMA also stresses the importance of the best execution requirements under the current and reviewed MiFID II framework. Therefore, apart from the content of the public statement, investment firms are required to strictly adhere to best execution requirements and NCAs are expected to supervise their compliance.