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The Markets in Financial Instruments Directive 2004/39/EC (known as “MiFID”) as subsequently amended is a European Union law that provides harmonised regulation for investment services across the 31 member states of the European Economic Area (the 28 EU member states plus Iceland, Norway and Liechtenstein). The directive’s main objectives are to increase competition and consumer protection in investment services. As of the effective date, 1 November 2007, it replaced the Investment Services Directive (ISD).
MiFID is the cornerstone of the European Commission’s Financial Services Action Plan, whose 42 measures will significantly change how EU financial service markets operate. MiFID is the most significant piece of legislation introduced under the Lamfalussy procedure designed to accelerate the adopting of legislation based on a four-level approach recommended by the Committee of Wise Men chaired by Baron Alexandre Lamfalussy. There are three other “Lamfalussy Directives”—the Prospectus Directive, the Market Abuse Directive and the Transparency Directive.
MiFID retained the principles of the EU “passport” introduced by the Investment Services Directive (ISD) but introduced the concept of “maximum harmonization” which places more emphasis on home state supervision. This is a change from the prior EU financial service legislation which featured a “minimum harmonization and mutual recognition” concept. “Maximum harmonisation” does not permit states to be “super equivalent” or to “gold-plate” EU requirements detrimental to a “level playing field”. Another change was the abolition of the “concentration rule” in which member states could require investment firms to route client orders through regulated markets.
The MiFID Level 1 Directive 2004/39/EC, implemented through the standard co-decision procedure of the Council of the European Union, and the European Parliament, sets out a detailed framework for the legislation. Twenty articles of this directive specified technical implementation measures (Level 2). These measures were adopted by the European Commission, based on technical advice from the Committee of European Securities Regulators and negotiations in the European Securities Committee with oversight by the European Parliament. Implementation measures in the form of a Commission Directive and Commission Regulation, were officially published on 2 September 2006.
In April 2014, the European Parliament approved both MiFID II, an updated version of the original MiFID law, and MiFID II’s accompanying regulation, MiFIR. The directive and regulation include fewer exemptions and expand the scope of the original MiFID to cover a larger group of companies and financial products. Both MiFID II and MiFIR are set to take effect in January 2018.
Background and history
MiFID was intended to replace the Investment Services Directive, which was adopted in 1993. The law creates a single market for investment services and activities, which improves the competitiveness in EU markets. While the original law did succeed in lowering prices and expanding choices for investors, weaknesses in MiFID’s structure became apparent during the financial crisis in 2008.
MiFID was also intended to make changes to share-trading, and it set guidelines for the use of related financial instruments. The law was introduced in order to reduce systemic risk and strengthen existing investor protections.
During the approval process for MiFID, a proposal from the European Commission was read by European Parliament in March 2004. In April 2006, the Commission published consultation responses it received in 2005. In June 2006, the Commission published a new draft of MiFID. The EC and Parliament discussed any suggested amendments to approve Level One texts. A second reading of the legislature by both Parliament and the Commission followed.
MiFID was introduced under the Lamfalussy procedure, which was designed to accelerate the adoption of legislation based on a four-level approach recommended by the Committee of Wise Men. The Committee was chaired by Baron Alexandre Lamfalussy. There are three other “Lamfalussy Directives,” including the Prospectus Directive, the Market Abuse Directive and the Transparency Directive.
The MiFID Level 1 Directive 2004/39/EC, implemented through the standard co-decision procedure of the Council of the European Union, and the European Parliament, sets out a detailed framework for the legislation. It also amends Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC and repeals Council Directive 93/22/EEC, Investment Services Directive (ISD) originally adopted in 1993.
Twenty articles of this directive specified technical implementation measures (Level 2). These measures were adopted by the European Commission, based on technical advice from the Committee of European Securities Regulators and negotiations in the European Securities Committee with oversight by the European Parliament. Implementation measures in the form of a Commission Directive and Commission Regulation, were officially published on 2 September 2006.
To determine which firms are affected by MiFID and which are not, MiFID distinguishes between “investment services and activities” (“core” services) and “ancillary services” (“non-core” services). More detail on the services in each category can be found in Annex 1 Sections A and B of the MiFID Level 1 Directive.
If a firm performs investment services and activities, it is subject to MiFID in respect both of these and also of ancillary services (and it can use the MiFID passport to provide them to member states other than its home state). However, if a firm only performs ancillary services, it is not subject to MiFID (but nor can it benefit from the MiFID passport).
MiFID covers almost all tradable financial products with the exception of certain foreign exchange trades. This includes commodity and other derivatives such as freight, climate and carbon derivatives, which were not covered by ISD.
That part of a firm’s business that is not covered by the above is not subject to MiFID.
Celent, a financial services consultancy, estimated in 2007 that under MiFID, the three largest EU jurisdictions—France, Germany, and the UK—would require publication of over 100 million additional trades annually, with spending increasing as well but at a slower rate, from €38 million yearly to close to €50 million.
- Authorisation, regulation and passporting
- Firms covered by MiFID will be authorised and regulated in their “home state” (broadly, the country in which they have their registered office). Once a firm has been authorised, it will be able to use the MiFID passport to provide services to customers in other EU member states. These services will be regulated by the member state in their “home state” (whereas currently under ISD, a service is regulated by the member state in which the service takes place).
- Client categorisation
- MiFID requires firms to categorise clients as “eligible counterparties”, professional clients or retail clients (these have increasing levels of protection). Clear procedures must be in place to categorise clients and assess their suitability for each type of investment product. That said, the appropriateness of any investment advice or suggested financial transaction must still be verified before being given.
- Client order handling
- MiFID has requirements relating to the information that needs to be captured when accepting client orders, ensuring that a firm is acting in a client’s best interests and as to how orders from different clients may be aggregated.
- Pre-trade transparency
- MiFID will require that operators of continuous order-matching systems must make aggregated order information on “liquid shares” available at the five best price levels on the buy and sell side; for quote-driven markets, the best bids and offers of market makers must be made available. (Note consideration is being given to extending these requirements to other financial instruments. Under Article 65(1) of Directive 2004/39/EC, the European Commission is due to submit a report to the European Parliament and to the Council on extending pre- and post-trade transparency requirements to transactions in financial instruments other than shares by October 2007.)
- Post-trade transparency
- MiFID will require firms to publish the price, volume and time of all trades in listed shares, even if executed outside of a regulated market, unless certain requirements are met to allow for deferred publication. (Note see comment above regarding extension of these requirements to other financial instruments).
- Best execution
- MiFID will require that firms take all reasonable steps to obtain the best possible result in the execution of an order for a client. The best possible result is not limited to execution price but also includes cost, speed, likelihood of execution and likelihood of settlement and any other factors deemed relevant.
- Systematic Internaliser
- A Systematic Internaliser is a firm that executes orders from its clients against its own book or against orders from other clients. MiFID will treat Systematic Internalisers as mini-exchanges, hence, for example, they will be subject to pre-trade and post-trade transparency requirements (see above).
Although MiFID was intended to increase transparency for prices, the fragmentation of trading venues has had an unanticipated effect. Where once a financial institution was able to see information from just one or two exchanges, they now have the possibility (and in some cases the obligation) to collect information from a multitude of multilateral trading facilities, Systematic Internalisers and other exchanges from around the European Economic Area (EEA). This results in an additional amount of work to benefit from the transparency that MiFID has introduced.
The number of additional pricing sources introduced by MiFID means that financial institutions have had to seek additional data sources to ensure that they capture as many quotes/trades as possible. Numerous financial data vendors have worked with the MiFID Joint Working Group and Regulators to make sure that they are able to help financial institutions to deal with the fragmentation and benefit from the increased transparency, while helping them to fulfill their new reporting liabilities.
MiFID and its accompanying implementing directive were transposed in full and on time, with minor exceptions. The European Commission has published a transposition table linking to lists of national provisions which transpose directives.
The Financial Services Authority (FSA), now the Financial Conduct Authority (FCA), was the body responsible for regulation of the securities industry in the United Kingdom during the period of implementation. It incorporated MiFID into its Handbook of rules and guidance.
The French legislator has implemented MiFID by modifying the French Monetary and Financial Code, in particular by ordinance number 2007-544 of 12 April 2007, and the decrees 2007-901 and 2007-904 of 15 May 2007. The Autorité des Marchés Financiers (AMF) has also applied MiFID to its General Regulations (Règlement Général).
In April 2010 CESR issued consultation papers on MiFID review. The consultation period was short and ended on 31 May 2010. There was one day of open hearings in Paris on 17 May 2010. Public responses to the consultations are now available although a number of institutions also submitted confidential responses.
On 8 December 2010, following a public hearing held in September 2010, the European Commission released a substantial public consultation relating to the review of MiFID (MiFID II), accompanied by a press release and frequently asked questions. The public consultation period was scheduled to close on 2 February 2011. On 26 May 2011, the Commission was reported to be working to present its proposals before the end of 2011.
On 20 October 2011, the European Commission adopted formal proposals for a “Directive on markets in financial instruments repealing Directive 2004/39/EC of the European Parliament and of the Council” (MiFID II Directive), and for a “Regulation on markets in financial instruments (MiFIR)”, which would also amend the proposed European Market Infrastructure Regulation (EMIR) on OTC derivatives, central counterparties and trade repositories.
In March 2012, MEP Markus Ferber suggested amendments to the European Commission’s proposals, intended to strengthen restrictions on high-frequency trading and commodity price manipulation. The Association for Financial Markets in Europe (AFME)’s formal response to Ferber particularly cited concern with the requirement that all algorithms run continuously as this would preclude the use of broker algorithms to execute client orders. The creation of the Organized Trading Facility (OTF) rules have also caused concern because of their proposed ban on proprietary trading in broker crossing networks, which would prevent brokers from using their pools to unwind risk on behalf of a client or the bank itself.
Both MiFID II and MiFIR entered into force on 2 July 2014 and must generally apply within Member States by 3 January 2017. However, in February 2016 the European Commission formally delayed the implementation date by a year. The new deadline is January 2018. The extension allows for the building of complex IT systems to enable enforcement of the new package.