United Kingdom (and EU regulation)

Supervisory approach on the MiFIR open access provisions for ETDs

On 13 July 2021, the European Securities and Markets Authority (ESMA) issued a public statement concerning its supervisory approach on the MiFIR open access provisions for exchange traded derivatives (ETDs).

The statement notes that:

Article 54(2) of MiFIR provides Member State national competent authorities (NCAs) with the possibility to temporarily exempt trading venues and central counterparties (CCPs) from the MiFIR access provisions for ETDs. A number of exemptions had been granted under this provision for the transitional period established in that Article, which expired on 3 July 2021.
The Council put forward a draft amendment of Article 54(2) of MiFIR in its General Approach on the Commission Proposal for a Regulation on a pilot regime for market infrastructures based on distributed ledger technology (so-called DLT Pilot Regime), envisaging an extension of the transitional period by two years to 3 July 2023.
ESMA understands that the European Parliament, in its deliberations on the Proposal for a Regulation on a DLT Pilot Regime, also indicated support for extending the transitional period by two years.
ESMA is aware that the legislative procedure in relation to the Proposal for a Regulation on a DLT Pilot Regime is not yet concluded but both co-legislators appear to have identical positions on an extension of the transitional period provided in Article 54(2) of MiFIR which suggests that the extension will in all likelihood be established.
ESMA nor NCAs have any formal power to dis-apply directly applicable EU legal text but based on the assumption that the extension of the transitional period established in Article 54(2) of MiFIR will be eventually provided, ESMA considers it important to take this into account when applying the MiFIR open access provisions for ETDs until the provision extending the application of the transitional period will be formally in place.
Based on the foregoing, ESMA therefore would expect NCAs to not prioritise actions in relation to the provisions in Articles 35 and 36 of MiFIR with respect to trading venues and CCPs that benefitted from transitional arrangements under Article 54(2) of MiFIR as far as ETDs are concerned.