The European Securities and Markets Authority (ESMA) has published an opinion that seeks to clarify the concept of “traded on a trading venue” (TOTV), which is relevant for a number of provisions under MiFID II and MiFIR.

The opinion states the following:

“ESMA is of the view that only OTC derivatives sharing the same reference data details as the derivatives traded on a trading venue should be considered to be TOTV and, hence, subject to the MiFIR transparency requirements and to transaction reporting according to Article 26(2)(a) of MiFIR.

In this context, “sharing the same reference data details” should mean that the OTC derivatives should share the same values as the ones reported in accordance with the fields of Regulation (EU) 2017/585 [Commission delegated regulation (EU) 2017/585 of 14 July 2016 supplementing MiFIR with regard to regulatory technical standards for the data standards and formats for financial instrument reference data and technical measures in relation to arrangements to be made by the European Securities and Markets Authority and competent authorities] for derivatives admitted to trading or traded on a trading venue, except fields 5 to 12 (the trading venue and issuer-related fields).

Since the trading venue and issuer related fields are only applicable to trading venues when submitting reference data for derivatives but are not applicable for trading those contracts bilaterally outside of trading venues, ESMA considers it appropriate not to take into account these fields when determining whether an OTC derivative traded outside of a trading venue is to be considered TOTV.”

View ESMA clarifies the concept of trade on a trading venue under MiFID II, 22 May 2017