On 29 September 2014, the European Securities and Markets Authority (ESMA) published a consultation on future guidelines clarifying the definition of derivatives as financial instruments under the current Markets in Financial Instruments Directive (MiFID I).

The different approaches to the interpretation of MiFID I across Member States mean that there is no commonly-adopted application of the definition of derivative or derivative contract in the EU for some asset classes. The practical consequences of this have come to the forefront with the implementation of the European Markets Infrastructure Regulation (EMIR).

These guidelines will allow a common approach by national competent authorities in the implementation of EMIR in respect of the classification of certain financial instruments as derivatives, until MIFID II when the relevant implementing regulation will start applying.