On 8 January 2024, the European Securities and Markets Authority (ESMA) updated its opinion on the assessment of pre-trade transparency waivers for equity and non-equity instruments.

The opinion provides a summary of the considerations on which ESMA opinions on pre-trade transparency waivers issued under Articles 4(4) and 9(2) of MiFIR are based. In consequence, the opinion does not represent new ESMA guidance but aims at communicating ESMA’s position regarding the compliance of the intended waivers with the applicable legal provisions to contribute to a level playing field.

Among other things the opinion notes that:

• As of 31 August 2023, ESMA issued a total of 1,209 opinions, of which 427 opinions are equity waivers and 782 opinions are non-equity waivers.
• In the process of assessing the compliance of notified waivers with the MiFIR pre-trade transparency requirement for equity and non-equity instruments, ESMA noted a number of recurring issues. In order to ensure consistent supervisory practices and consistent approaches throughout the EU regarding the application of the relevant requirements by Member State competent authorities and trading venues and to contribute to a smooth processing of waiver notifications, and being mindful that the ESMA opinions on pre-trade transparency waivers are not made public, ESMA considers it necessary to provide guidance on the main issues identified so far.
• The opinion is meant as a clarification of the MiFIR requirements and does not create any new obligations for Member State competent authorities or market participants.
• ESMA is aware that with the evolution of markets new trading systems and new functionalities may be developed and, with them, new issues might emerge that ESMA will analyse and address and, if necessary, update this opinion.