15 November 2012

ESMA publishes an update of the list of waivers under MiFID

The examples are also intended to help firms by providing clarity as to the content of the MiFID requirements without creating an extra layer of requirements and to assist them when they intend to develop new trading functionalities.

Status

7. The ESMA waiver process leads to an ESMA opinion to the notifying competent authority under Article 29(1)(a) of the ESMA Regulation on the MiFID compliance of a specific proposal for a pre-trade transparency waiver. The information published on the examples of pre-trade transparency waivers is a practical convergence tool used to promote common supervisory approaches and practices under Article 29(2) of the ESMA Regulation. Additionally, it aims at providing information on the application of the relevant provisions of MiFID in specific cases and at assisting market participants when they create new functionalities.

8. Due to the nature of the information provided, formal consultation is considered unnecessary.

9. The consideration of the waiver proposals covered in this document is based solely on the information provided by the relevant national competent authority. According to the existing legal framework in MiFID, the responsibility for the final decision on the waivers lies with the national competent authorities.

10. The specification of a system or an order type as being MiFID compliant/non-compliant does not imply that only a system/order type having exactly the same characteristics is considered to be MiFID compliant/non-compliant. However, ESMA’s consideration would naturally have the same outcome if other arrangements have exactly the same characteristics as the ones already considered. In any case, reference to a specific product, process or service does not constitute or imply that it is recommended or favoured by ESMA or any of the national competent authorities.

10. The specification of a system or an order type as being MiFID compliant/non-compliant does not imply that only a system/order type having exactly the same characteristics is considered to be MiFID compliant/non-compliant. However, ESMA’s consideration would naturally have the same outcome if other arrangements have exactly the same characteristics as the ones already considered. In any case, reference to a specific product, process or service does not constitute or imply that it is recommended or favoured by ESMA or any of the national competent authorities.

11. CESR published its first positions on MiFID pre-transparency waivers on 20 May 2009 and last updated them on 22 December, 2010. This document endorses the decisions previously adopted by CESR. The information in the table will be updated on a continuous basis as and when ESMA forms new opinions on waivers. The date CESR decisions were made or ESMA opinions were given is included after each example.

12. The table does include all waivers granted by national competent authorities. The information is published without prejudice to any new considerations that ESMA might want to make following new information and/or new developments having an impact on its content.

List of waivers under MiFID

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