July 8, 2020

Volume X, Number 190

July 08, 2020

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July 07, 2020

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July 06, 2020

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ESMA Proposes MiFIR Amendments Following EMIR Refit

On February 7, the European Securities and Markets Authority (ESMA) published a final report (the Final Report) regarding proposed amendments to the Markets in Financial Instruments Regulation (MiFIR). This is in response to the changes introduced by the amended European Market Infrastructure Regulation (EMIR Refit), which became effective on January 1. For more information, please see the June 14 edition of Corporate & Financial Weekly Digest).

The Final Report addresses amendments to the clearing obligation made under EMIR Refit, which have had an impact on the application of the derivatives trading obligation under MiFIR. In particular, EMIR Refit introduced an exemption to the clearing obligation for small financial counterparties and modified the mechanism for determining the obligations of non-financial counterparties, who are above the clearing threshold.

In the Final Report, ESMA notes that these changes have created a “misalignment between the scope of counterparties subject to” EMIR Refit and MiFIR. The proposed amendments, therefore, are to realign the requirements.

ESMA notes that the Final Report was not due to be submitted to the European Commission (EC) until May 18. However, there was some confusion over the scope of a statement ESMA released in July 2019 concerning this issue, and, by publishing the Final Report, ESMA has stated that it hopes this clarifies the issue. In addition, this earlier submission could allow the EC to bring the proposed amendments to MiFIR into law sooner than December 18, as is currently scheduled.

The Final Report is available here.

©2020 Katten Muchin Rosenman LLPNational Law Review, Volume X, Number 46


About this Author

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
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
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...

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