Article 36(1) of MiFIR establishes that a trading venue shall provide trade feeds on a non-discriminatory and transparent basis, including as regards fees related to access, upon request to any central counterparty (CCP) authorised or recognised by the European Market Infrastructure Regulation (EMIR) that wishes to clear transactions in financial instruments that are concluded on that trading venue. That requirement does not apply to any derivative contract that is already subject to the access obligations under Article 8 of EMIR.
However, Article 36(5) of MiFIR provides that as regards exchange-traded derivatives (ETDs), a trading venue which falls below the threshold of annual notional amount traded of EUR 1 million in the calendar year preceding the date of application of MiFIR, may, before 3 January 2018, notify ESMA and its competent authority (CA) that it does not wish to be bound by this article for a period of 30 months from the application of the Regulation. A trading venue which remains below the relevant threshold in every year of that, or any further, 30 month period may, at the end of the period, notify ESMA and its CA that it wishes to continue to not be bound by the article for an additional thirty months.
Where the trading venue notifying the temporary opt-out is connected to one or more CCPs by close links, those CCPs cannot benefit from the access rights under Articles 35 and 36 for ETDs included within the relevant threshold for the duration of the opt-out.
The European Securities and Markets Authority (ESMA) is required to publish a list of all notifications that it receives.
ESMA has now published a procedure regarding the exemption of MiFIR access provisions for trading venues as regards ETDs. The document sets out the procedure to be followed by ESMA for verifying and approving notifications for the temporary exemption of the access provisions under MiFIR for trading venues that fall below the threshold of EUR 1 million of annual notional amount traded in ETDs.
ESMA’s document is intended for CAs and trading venues that can benefit from the exemption foreseen in Article 36(5) MIFIR.
View ESMA sets out procedure for exemption from MiFIR access provisions for trading venues, 15 September 2017