Explanatory Memorandum to COM(2011)656 - Markets in financial instruments

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dossier COM(2011)656 - Markets in financial instruments.
source COM(2011)656 EN
date 20-10-2011
1. Context of the Proposal

The Markets in Financial Instruments Directive (MiFID), in force since November 2007, is a core pillar in EU financial market integration. Adopted in accordance with the 'Lamfalussy' process[1], it consists of a framework Directive (Directive 2004/39/EC)[2], an implementing Directive (Directive 2006/73/EC)[3] and an implementing Regulation (Regulation No 1287/2006)[4]. MiFID establishes a regulatory framework for the provision of investment services in financial instruments (such as brokerage, advice, dealing, portfolio management, underwriting etc.) by banks and investment firms and for the operation of regulated markets by market operators. It also establishes the powers and duties of national competent authorities in relation to these activities.

The overarching objective is to further the integration, competitiveness, and efficiency of EU financial markets. In concrete terms, it abolished the possibility for Member States to require all trading in financial instruments to take place on traditional exchanges and enabled Europe-wide competition between those exchanges and alternative venues. It also granted banks and investment firms a strengthened 'passport' for providing investment services across the EU subject to compliance with both organisational and reporting requirements as well as comprehensive rules designed to ensure investor protection.

The result after 3.5 years in force is more competition between venues in the trading of financial instruments, and more choice for investors in terms of service providers and available financial instruments, progress which has been compounded by technological advances. Overall, transaction costs have decreased and integration has increased[5]

However, some problems have surfaced. First, the more competitive landscape has given rise to new challenges. The benefits from this increased competition have not flowed equally to all market participants and have not always been passed on to the end investors, retail or wholesale. The market fragmentation implied by competition has also made the trading environment more complex, especially in terms of collection of trade data. Second, market and technological developments have outpaced various provisions in MiFID. The common interest in a transparent level playing-field between trading venues and investment firms risks being undermined. Third, the financial crisis has exposed weaknesses in the regulation of instruments other than shares, traded mostly between professional investors. Previously held assumptions that minimal transparency, oversight and investor protection in relation to this trading is more conducive to market efficiency no longer hold. Finally, rapid innovation and growing complexity in financial instruments underline the importance of up-to-date, high levels of investor protection. While largely vindicated amid the experience of the financial crisis, the comprehensive rules of MiFID nonetheless exhibit the need for targeted but ambitious improvements.

The revision of MiFID therefore constitutes an integral part of the reforms aimed at establishing a safer, sounder, more transparent and more responsible financial system working for the economy and society as a whole in the aftermath of the financial crisis, as well as to ensure a more integrated, efficient and competitive EU financial market.[6] It is also an essential vehicle for delivering on the G20[7] commitment to tackle less regulated and more opaque parts of the financial system, and improve the organisation, transparency and oversight of various market segments, especially in those instruments traded mostly over the counter (OTC)[8], complementing the legislative proposal on OTC derivatives, central counterparties and trade repositories[9].

Targeted improvements are also required in order to improve oversight and transparency of commodity derivative markets in order to ensure their function for hedging and price discovery, as well as in light of developments in market structures and technology in order to ensure fair competition and efficient markets. Further, specific changes to the framework of investor protection are necessary, taking account of evolving practices and to support investor confidence.

Finally, in line with the recommendations of from the de Larosière group and the conclusion of the ECOFIN Council,[10] the EU has committed to minimise, where appropriate, discretions available to Member States across EU financial services directives. This is a common thread across all areas covered by the review of MiFID and will contribute to establishing a single rulebook for EU financial markets, help further develop a level playing field for Member States and market participants, improve supervision and enforcement, reduce costs for market participants, and improve conditions of access and enhance the global competitiveness of the EU financial industry.

As a result, the proposal amending MiFID is divided in two. A Regulation sets out requirements in relation to the disclosure of trade transparency data to the public and transaction data to competent authorities, removing barriers to non-discriminatory access to clearing facilities, the mandatory trading of derivatives on organised venues, specific supervisory actions regarding financial instruments and positions in derivatives and the provision of services by third-country firms without a branch. A Directive amends specific requirements regarding the provision of investment services, the scope of exemptions from the current Directive, organisational and conduct of business requirements for investment firms, organisational requirements for trading venues, the authorisation and ongoing obligations applicable to providers of data services, powers available to competent authorities, sanctions, and rules applicable to third-country firms operating via a branch.

Contents

1.

Results of consultations with the interested parties and impact assessments



The initiative is the result of an extensive and continuous dialogue and consultation with all major stakeholders, including securities regulators, all types of market participants including issuers and retail investors. It takes into consideration the views expressed in a public consultation from 8 December 2010 to 2 February 2011[11], a large and well-attended public hearing was held over two days on 20-21 September 2010[12], and input obtained through extensive meetings with a broad range of stakeholder groups since December 2009. Finally, the proposal takes into consideration the observations and analysis contained in the documents and technical advice published by the Committee of European Securities Regulators (CESR), now the European Securities and Markets Authority (ESMA)[13].

In addition, two studies[14] have been commissioned from external consultants in order to prepare the revision of MiFID. The first one, requested from PriceWaterhouseCoopers on 10 February 2010 and received on 13 July 2010, focused on data gathering on market activities and other MiFID related issues. The second, from Europe Economics mandated on the 21 July 2010 and received on 23 May 2011 focused on a cost benefit analysis of the various policy options to be considered in the context of the revision of MiFID.

In line with its 'Better Regulation' policy, the Commission conducted an impact assessment of policy alternatives. Policy options were assessed against different criteria: transparency of market operations for regulators and market participants, investor protection and confidence, level playing field for market venues and trading systems in the EU, and cost-effectiveness, i.e. the extent to which the options achieve the sought objectives and facilitate the operation of securities markets in a cost effective and efficient way.

Overall, the review of MiFID is estimated to generate one-off compliance costs of between €512 and €732 million and ongoing costs of between €312 and €586 million. This represents one-off and ongoing cost impacts of respectively 0.10% to 0.15% and 0.06% to 0.12% of total operating spending of the EU banking sector. This is far less than the costs imposed at the time of the introduction of MiFID. The one-off cost impacts of the introduction of MiFID were estimated at 0.56% (retail and savings banks) and 0.68% (investment banks) of total operating spending while ongoing compliance costs were estimated at 0.11% (retail and savings banks) to 0.17% (investment banks) of total operating expenditure.

3.

3. Legal elements of the proposal 3.1. Legal basis


The proposal is based on Article 53(1) of the TFEU. This Directive would replace Directive 2004/39/EC with regard to the harmonisation of national provisions for the authorisation governing the provision of investment services and the carrying out of investment activities by investment firms, the acquisition of qualifying holdings, the exercise of the freedom of establishment and of the freedom to provide services, the powers of supervisory authorities of home and host Member States in this regard, as well as the authorisation and operating conditions for regulated markets and providers of market data. The main objective and subject-matter of this proposal is to harmonise national provisions concerning the access to the activity of investment firms, regulated markets and data service providers, the modalities for their governance, and their supervisory framework. The proposal is therefore based on Article 53(1) TFEU.

This proposal is complementary to the proposed regulation [MiFIR], establishing uniform and directly applicable requirements which are necessary for the even functioning of the market in financial instruments in the field of, for example, publication of trade data, transaction reporting to competent authorities, and specific powers for competent authorities and ESMA.

4.

3.2. Subsidiarity and proportionality


According to the principle of subsidiarity (Article 5.3 of the TFEU), action on EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States alone and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the EU.

Most of the issues covered by the revision are already covered by the current MiFID legal framework. Further, financial markets are inherently cross-border in nature and are becoming more so. The conditions according to which firms and operators can compete in this context, whether it concerns rules on pre and post-trade transparency, investor protection or the assessment and control of risks by market participants, need to be common across borders and are all at the core of MiFID today. Action is now required at European level in order to update and modify the regulatory framework laid out by MiFID in order to take into account developments in financial markets since its implementation. The improvements that the directive has already brought to the integration and efficiency of financial markets and services in Europe would thus be bolstered with appropriate adjustments to ensure the objectives of a robust regulatory framework for the single market are achieved. Because of this integration, isolated national intervention would be far less efficient and would lead to the fragmentation of markets, resulting in regulatory arbitrage and distortion of competition. For instance, different levels of market transparency or investor protection across Member States would fragment markets, compromise liquidity and efficiency, and lead to harmful regulatory arbitrage.

The European Securities and Markets Authority (ESMA) should also play a key role in the implementation of the new EU-wide framework. Specific competences for ESMA are necessary in order to improve the functioning of the single market in securities.

The proposal takes full account of the principle of proportionality, namely that EU action should be adequate to reach the objectives and does not go beyond what is necessary. It is compatible with this principle, taking into account the right balance of the public interest at stake and the cost-efficiency of the measure. The requirements imposed on the different parties have been carefully calibrated. In particular, the need to balance investor protection, efficiency of the markets and costs for the industry has been central in laying out these requirements.

5.

3.3. Compliance with Articles 290 and 291 TFEU


On 23 September 2009, the Commission adopted proposals for Regulations establishing EBA, EIOPA, and ESMA. In this respect the Commission wishes to recall the Statements in relation to Articles 290 and 291 TFEU it made at the adoption of the Regulations establishing the European Supervisory Authorities according to which: 'As regards the process for the adoption of regulatory standards, the Commission emphasises the unique character of the financial services sector, following from the Lamfalussy structure and explicitly recognised in Declaration 39 to the TFEU. However, the Commission has serious doubts whether the restrictions on its role when adopting delegated acts and implementing measures are in line with Articles 290 and 291 TFEU.'

3.4. Detailed explanation of the proposal 3.4.1. General – Level-playing field

A central aim of the proposal is to ensure that all organised trading is conducted on regulated trading venues: regulated markets, multilateral trading facilities (MTFs) and organised trading facilities (OTFs). Identical pre and post trade transparency requirements will apply to all of these venues. Likewise, the requirements in terms of organisational aspects and market surveillance applicable to all three venues are nearly identical. This will ensure a level playing field where there are functionally similar activities bringing together third-party trading interests. Importantly however, the transparency requirements will be calibrated for different types of instruments, notably equity, bonds, and derivatives, and for different types of trading, notably order book and quote driven systems.

In all three venues the operator of the platform is neutral. Regulated markets and multilateral trading facilities are characterised by non-discretionary execution of transactions. This means that transactions will be executed according to predetermined rules. They also compete to offer access to a broad membership provided they meet a transparent set of criteria.

By contrast, the operator of an OTF has a degree of discretion over how a transaction will be executed. Consequently, the operator is subject to investor protection, conduct of business, and best execution requirements towards the clients using the platform. . Thus, while both the rules on access and execution methodology of an OTF have to be transparent and clear, they allow the operator to perform a service to clients which is qualitatively if not functionally different from the services provided by regulated markets and MTFs to their members and participants. Still, in order to ensure both the OTF operator's neutrality in relation to any transaction taking place and that the duties owed to clients thus brought together cannot be compromised by a possibility to profit at their expense, it is necessary to prohibit the OTF operator from trading against his own proprietary capital.

Finally, organised trading may also happen by systematic internalisation. A systematic internaliser (SI) may execute client transactions against his own proprietary capital. However, an SI may not bring together third party buying and selling interests in functionally the same was as a regulated market, MTF or OTF, and is therefore not a trading venue. Best execution and other conduct of business rules would apply, and the client would clearly know when he is trading with the investment firm and when he is trading against third parties. Specific pre-trade transparency and access requirements apply to SIs. Again, the transparency requirements will be calibrated for different types of instruments, notably equity, bonds, and derivatives and apply below specific thresholds. Any trading on own account by investment firms with clients, including other investment firms, is thus considered over-the counter (OTC). OTC trading activity which will not meet the definition of SI activity, to be made more inclusive through amendments to implementing legislation, will have to be non systematic and irregular.

6.

3.4.2. Extension of MiFID rules to like products and services (Articles 1, 3, 4)


In the context of the work on packaged retail investment products (PRIPs)[15], the Commission has committed to ensuring a consistent regulatory approach based on MiFID provisions for the distribution to retail investors of different financial products which satisfy similar investor needs and raise comparable investor protection challenges. Second, concerns regarding the applicability of MiFID when investment firms or credit institutions issue and sell their own securities have been raised. While the application of MiFID is clear when investment advice is provided as part of the sale, greater clarity is needed in the case of non-advised services, where the investment firm or bank could be considered not to be providing a MiFID service. Finally, the disparity between Member State rules applicable to locally active entities exempt from MiFID offering a limited range of investment services is no longer tenable in view of the lessons of the financial crisis, the complexity of financial markets and products, and the need for investors to be able to rely on similar levels of protection irrespective of the location or the nature of the service providers.

The proposals therefore extend MiFID requirements, and particularly conduct of business and conflicts of interest rules, to the advised and non-advised sale of structured deposits by credit institutions, specify that MiFID also applies to investment firms and credit institutions selling their own securities when not providing any advice, and require Member States to apply authorisation and conduct of business requirements analogous to MiFID in national legislation applicable to locally-based entities.

7.

3.4.3. Revision of exemptions from MiFID (Article 2)


MiFID lists dealing on own account in financial instruments among the investment services and activities requiring authorisation. However, three key exemptions were introduced to exclude persons who deal on own account as an exclusive activity, as an ancillary part of another non-financial corporate activity, or as part of a non-financial commodity-trading activity. In line with G20 commitments, the appropriate coverage of MiFID provisions to firms providing investment services to clients and carrying out investment activities on a professional basis should be ensured. The proposals therefore limit the exemptions more clearly to activities which are less central to MiFID and primarily proprietary or commercial in nature, or which do not constitute high-frequency trading.

8.

3.4.4. Upgrades to the market structure framework (Articles 18, 19, 20, 32, 33, 34, 53, 54)


Market developments since MiFID have partially challenged the current regulatory framework applicable to different types of execution venues, intended to underpin fair competition, a level-playing field, and transparent and efficient markets. Its function and design built mainly around equity-trading, the need to improve transparency and resiliency in non-equity markets, and the fact that not all modes of organised trading which have evolved in recent years adequately correspond to the definitions and requirements of the three-pronged division foreseen in MiFID – regulated markets, multilateral trading facilities, systematic internalisers – all signal the need to provide for a refinement of the present framework. The proposals create a new category for organised trading facilities which do not correspond to any of the existing categories, underpinned by strong organisational requirements and identical transparency rules, and upgrade key requirements across all venues to account for the greater competition and cross-border trading generated together by technological advances and MiFID.

9.

3.4.5. Improvements to corporate governance (Articles 9, 48)


MiFID requires persons who effectively direct the business of an investment firm to be of sufficiently good repute and sufficiently experienced as to ensure the sound and prudent management of the investment firm. In line with the Commission's work on corporate governance in the financial sector,[16] it is proposed to strengthen these provisions with regard to the profile, role, responsibilities of both executive and non-executive directors and balance in the composition of management bodies. In particular, the proposals seek to ensure members of the management body possess the sufficient knowledge and skills and comprehend the risks associated with the activity of the firm in order to ensure the firm is managed in a sound and prudent way in the interests of investors and market integrity.

10.

3.4.6. Enhanced organisational requirements to safeguard the efficient functioning and integrity of markets (Articles 16, 51)


Technological developments in the trading of financial instruments present both opportunities and challenges. While the effects are generally perceived as positive for market liquidity and to have improved the efficiency of markets, specific regulatory and supervisory measures have been identified as necessary in order to adequately deal with the potential threats for the orderly functioning of markets arising from algorithmic and high-frequency trading. In particular, the proposals aim to bring all entities engaged in high-frequency trading into MiFID, require appropriate organisational safeguards from these firms and those offering market access to other high-frequency traders, and require venues to adopt appropriate risk controls to mitigate disorderly trading and ensure the resiliency of their platforms. They also aim to assist the oversight and monitoring of such activities by competent authorities.

3.4.7. Enhancement of the investor protection framework (Articles 13, 24, 25, 27, 29, Annex I – Section A)

MiFID is generally acknowledged to have improved the protection of both retail and professional investors. Nonetheless, experience indicates that modifications in a number of areas would help to mitigate cases where the possibilities for investor detriment are most acute. Notably the proposals strengthens the regulatory framework for the provision of investment advice and portfolio management and the possibility for investment firms to accept incentive by third parties (inducements) as well as it clarifies the conditions and arrangements under which investors are able to transact freely in the market in certain non-complex instruments with minimal duties or protections afforded on behalf of their investment firm. Furthermore, it introduces a framework to deal with cross-selling practices in order to ensure that investors are properly informed and that these practices are not detrimental for them. The proposal reinforces the requirements concerning the handling of funds or instruments belonging to clients by investment firms and their agents and classifies as an investment service the safekeeping of financial instruments on behalf of clients. The proposal helps improving the information to clients in relation to the services provided to them and to the execution of their orders.

11.

3.4.8. Heightened protections in the provision of investment services to non-retail clients (Article 30, Annex II)


The MiFID classification of clients into retail, professional and eligible counterparties provides an adequate and satisfactory degree of flexibility and should thus largely remain unchanged. Nonetheless, extensive examples concerning transactions in complex instruments by local authorities and municipalities have demonstrated that their classification is inadequately reflected in the MiFID framework. Second, while many detailed conduct of business requirements are not meaningful in the relationship between eligible counterparties in their multiple daily dealings, the overarching high level principle to act honestly, fairly and professionally and the obligation to be fair, clear and not misleading should apply irrespective of client categorization. Finally, it is proposed that eligible counterparties benefit from better information and documentation for services provided.

12.

3.4.9. New requirements for trading venues (Articles 27, 59, 60)


Assessing best execution in MiFID today hinges on the availability of pre- and post-trade transparency data. Nevertheless, other information such as the number of orders cancelled prior to execution or the speed of execution can also be relevant. The proposal therefore introduces a requirement for trading venues to publish annual data on execution quality. Second, commodity derivative contracts traded on trading venues frequently attract the broadest participation by users and investors and can often serve as a benchmark price discovery venues feeding into, for example, retail energy and food prices. It is therefore proposed that all trading venues on which commodity derivative contracts are traded adopt appropriate limits or alternative arrangements to ensure the orderly functioning of the market and settlement conditions for physically delivered commodities, and provide systematic, granular and standardised information on positions by different types of financial and commercial traders to regulators (including the category and identity of the end-client) and market participants (including only aggregate positions of categories of end-clients). The limits to be adopted by these venues may be harmonised in delegated acts by the Commission, and neither they nor any alternative arrangements are without prejudice to the ability of competent authorities and ESMA, pursuant to this Directive and MiFIR, to impose additional measures when necessary.

13.

3.4.10. An improved regime for SME markets (Article 35)


To complement various recent EU initiatives to assist SMEs in obtaining financing, it is proposed to create a new subcategory of markets known as SME growth markets. An operator of such a market (which are usually operated as MTFs) could elect to apply to have the MTF also registered as an SME growth market if it meets certain conditions. The registration of these markets should raise their visibility and profile and help lead to common pan European regulatory standards for such markets, that are tailored to take into account the needs of issuers and investors in these markets while maintaining existing high levels of investor protection.

14.

3.4.11. Third country regime (Articles 41-50)


The proposal creates a harmonised framework for granting access to EU markets for firms and market operators based in third countries in order to overcome the current fragmentation into national third country regimes and to ensure a level playing field for all financial services actors in the EU territory. The proposal introduces a regime based on a preliminary equivalence assessment of third country jurisdictions by the Commission. Third country firms from third countries for which an equivalence decision has been adopted would be able to request to provide services in the Union. The provision of services to retail clients would require the establishment of a branch; the third country firm should be authorised in the Member State where the branch is established and the branch would be subject to EU requirements in some areas (organisational requirements, conduct of business rules, conflicts of interest, transparency and others). Services provided to eligible counterparties would not require the establishment of a branch; third country firms could provide them subject to ESMA registration. They would be supervised in their country. Appropriate cooperation agreement between the supervisors in third countries and national competent authorities and ESMA would be necessary.

15.

3.4.12. Increased and more efficient data consolidation (Articles 61-68)


The area of market data in terms of quality, format, cost and ability to consolidate is key to sustain the overarching principle of MiFID as regards transparency, competition and investor protection. In this area, the proposed provisions in the Regulation and the Directive bring in a number of fundamental changes.

The provisions will improve the quality and consistency of data by requiring that all firms publish their trade reports through Approved Publication Arrangement (APA). The provisions set procedures for competent authority to authorise the APAs and set organisational requirements for the APAs.

The proposed provisions will address one of the main criticisms made on the effects of the implementation of MiFID, which is data fragmentation. Besides requiring market data to be reliable, timely and available at a reasonable cost, it is crucial for investors that market data can be brought together in a way that allows efficient comparison of prices and trades across venues. The multiplication of market venues further to the implementation of MiFID has made this exercise more difficult. The proposed provisions set the conditions for the emergence of consolidated tape providers. It defines the organisational requirements that such providers will need to meet in order to be able to operate such a scheme.

16.

3.4.13. Heightened powers over derivative-positions for competent authorities (Articles 61, 72, 83)


As a result of the significant growth in the size of derivative markets in recent years, the proposals would overcome the current fragmentation in the powers of regulators to monitor and supervise positions. In the interests of the orderly functioning of markets or market integrity, they would be bestowed with explicit powers to demand information from any person regarding the positions held in the derivative instruments concerned as well as in emission allowances. The supervisory authorities would be able to intervene at any stage during the life of a derivative contract and take action that a position be reduced. This heightened position management would be complemented by the possibility to limit positions in an ex-ante, non-discriminatory fashion. All actions should be notified to ESMA.

17.

3.4.14. Effective sanctions (Articles 73-78)


Member States should provide that appropriate administrative sanctions and measures can be applied to breaches of MiFID. To this end, the Directive will require them to comply with the following minimum rules.

First, administrative sanctions and measures should apply to those natural or legal persons and to investment firms responsible for a breach.

Second, in the case of a breach of provisions of this Directive and the Regulation, a minimum set of administrative sanctions and measures should be available to competent authorities. This includes withdrawal of authorisation, public statement, dismissal of management, administrative pecuniary sanctions.

Third, the maximum level of administrative pecuniary sanctions laid down in national legislation should exceed the benefits derived from the breach if they can be determined and, in any case, should not be lower than the level provided for by the Directive.

Fourth, the criteria taken into account by competent authorities when determining the type and level of the sanction to be applied in a particular case should include at least the criteria set out in the Directive (eg. benefits derived from the violation or losses caused to third parties, cooperative behaviour of the responsible person, etc).

Fifth, sanctions and measures applied should be published, as provided in this Directive.

Finally, appropriate mechanism should be put in place to encourage reporting of breaches within investment firms.

Criminal sanctions are not covered by this proposal.

18.

3.4.15. Emission allowances (Article Annex I, Section C)


Unlike trading in derivatives, spot secondary markets in EU emission allowances (EUAs) are largely unregulated. A range of fraudulent practices have occurred in spot markets which could undermine trust in the emissions trading scheme (ETS), set up by the EU ETS Directive[17]. In parallel to measures within the EU ETS Directive to reinforce the system of EUA registries and conditions for opening an account to trade EUAs, the proposal would render the entire EUA market subject to financial market regulation. Both spot and derivative markets would be under a single supervisor. MiFID and the Directive 2003/6/EC on market abuse would apply, thereby comprehensively upgrading the security of the market without interfering with its purpose, which remains emissions reduction. Moreover, this will ensure coherence with the rules already applying to EUA derivatives and lead to greater security as banks and investment firms, entities obliged to monitor trading activity for fraud, abuse or money laundering, would assume a bigger role in vetting prospective spot traders.

2.

Budgetary implication



The specific budget implications of the proposal relate to task allocated to ESMA as specified in the legislative financial statements accompanying this proposal. Specific budgetary implications for the Commission are also assessed in the financial statement accompanying this proposal.

The proposal has implications for the Community budget.

19.

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