On June 24, the European Commission adopted two delegated acts to supplement the Markets in Financial Instruments Regulation (MiFIR). The delegated acts take the form of directly applicable regulations (together, Delegated Regulations)—meaning that they will be binding laws in each of the EU member states without any need for local law implementation. The Delegated Regulations cover: (1) clearing access in respect of trading venues and central counterparties (Clearing Access Regulation); and (2) maintenance of relevant data relating to orders in financial instruments (Maintenance of Data Regulation).

  • Clearing Access Regulation – MiFIR introduces a non-discriminatory or “open access” regime for central counterparties (CCPs) and trading venues. Under MiFIR, CCPs are required to accept financial instruments for clearing on a non-discriminatory basis, regardless of the trading venue on which the transaction was executed. Trading venues are similarly required under MiFIR to provide CCPs with trade feeds on a non-discriminatory basis (including in relation to access fees) on request. The Clearing Access Regulation further specifies what constitutes grounds for denial of access by a CCP or trading venue (including operational risk and complexity, or significant undue risk). It also specifies the contents of access agreements and collateral and margining requirements for economically equivalent contracts, in addition to transitional arrangements.
  • Maintenance of Data Regulation – Under MiFIR, operators of trading venues are required to maintain records and data of all orders in financial instruments advertised through their systems for at least five years (that must be made available to the relevant competent authority on request). The Maintenance of Data Regulation further sets out the format and details of these records, including specifications around identifying the relevant parties, trading capacity, timestamping, sequencing, order instruments and price.

As mentioned in previous updates, the European Council and European Parliament will consider the Delegated Regulations and, once formally approved, the Delegated Regulations will go into effect 20 days following their publication in the Official Journal of the European Union. For more information, see the Corporate & Financial Weekly Digest editions of June 17, June 10, May 27, May 20, April 29 and April 15. A copy of the Clearing Access Regulation can be found here, and its annex here. A copy of the Maintenance of Data Regulation can be found here, and its annex here.