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ESMA Consults on Third-Country Reporting Under MiFID II and MiFIR

On January 31, the European Securities and Markets Authority (ESMA) published a consultation paper (the CP) containing draft technical standards on the reporting requirements for third-country firms who provide investment services and activities in the European Union (EU) under the revised Markets in Financial Instruments Directive (MiFID II) and the Markets in Financial Instruments Directive (MiFIR).

ESMA is required to draft these technical standards following the amendments to MiFID II and MiFIR introduced by the Investment Firm Directive (the IFD) and the Investment Firms Regulation (the IFR) respectively.

The CP concerns two types of firms:

  • firms who are accessing EU eligible counterparties and per se professional clients under Article 46 of MiFIR (i.e., on the basis of an equivalence determination (Equivalence Firms)), of which there are currently none because the European Commission has yet to make such a determination; and

  • firms who are accessing the EU under Article 41 of MiFID II (i.e., as a branch (Branch Firms)).

Equivalence Firms must provide information to ESMA at the time of registration and continually on an annual basis. In the CP, ESMA proposes the detail of the information to be provided and some initial technical details regarding the format of that information.

Branch Firms must provide information, upon registration and on an annual basis, to the national competent authority (NCA) (i.e., the regulator) of the Member State in which it is established. The minimum information requirements are set out in MiFID II, and the NCA is free to impose higher standards if so desired. In the CP, ESMA proposes the format in which the information is to be provided, and notes the importance of aligning these requirements with those imposed on Equivalence Firms.

The CP is available here and the consultation closes on March 31.

©2020 Katten Muchin Rosenman LLPNational Law Review, Volume X, Number 52


About this Author

John Ahern, Financial Attorney, London, Katten Law Firm

John Ahern, partner at Katten Muchin Rosenman UK LLP and head of the London Financial Services group, focuses his practice on banking, financial services, UK and European financial markets, and related regulations. His background in private practice and as in-house counsel at a global investment bank provides him with perspective on the unique regulatory issues facing the wholesale and private banking sectors. John advises multilateral trading facilities, broker-dealers and banks on trading, clearing and settlement as well as custody of securities—both physical and...

+44 (0) 20 7770 5253
Carolyn H. Jackson, International Attorney, Katten Muchin law firm

Carolyn Jackson is a partner in Katten Muchin Rosenman UK LLP and is a Registered Foreign Lawyer. She provides US financial regulatory legal advice to a broad range of market participants, including commercial banks, investment banks, investment managers, broker-dealers, electronic trading platforms, clearinghouses, trade associations and over-the-counter derivatives service providers.

Carolyn guides clients in the structuring and offering of complex securities, commodities and derivatives transactions and in complying with US securities and commodities laws and regulations. 

+44 0 20 7776 7625
Nathaniel Lalone, Katten Muchin Law Firm, Financial Institutions Attorney
Senior Associate

Nathaniel Lalone, a partner at Katten Muchin Rosenman UK LLP, has a broad range of experience in the regulation of financial products and financial markets, and frequently provides regulatory and compliance advice to trading venues, clearing houses and buy-side firms active in the over-the-counter (OTC) derivatives, futures and securities markets. He is actively involved in advising clients on the implementation of MiFID 2 and MiFIR in the European Union as well as the international reach of US financial services regulation. He also has significant experience with structuring...

+44 0 20 7776 7629
Neil Robson, private equity fund managers counselor, Katten Law Firm, London

Neil Robson, a regulatory and compliance partner with Katten Muchin Rosenman LLP, focuses his practice on counseling hedge and private equity fund managers and other investment advisers on operational, regulatory and compliance issues. He regularly addresses Financial Conduct Authority (FCA) and EU authorization and compliance under both the EU Alternative Investment Fund Managers Directive (AIFM Directive) and MiFID, cross-border issues in the financial services sector, market abuse, anti-money laundering and regulatory capital requirements, formations and buyouts of...