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ESMA Statement on Application of MiFID II, MiFIR and BMR Provisions in No-Deal Brexit

On March 7, the European Securities and Markets Authority (ESMA) published a statement outlining its approach to the application of key provisions of the revised Markets in Financial Instruments Directive (MiFID II), Markets in Financial Instruments Regulation (MiFIR) and the Benchmarks Regulation (BMR), in the event that the United Kingdom leaves the European Union without a withdrawal agreement (no-deal Brexit).

The statement covers MiFID II and MiFIR provisions relating to the following:

  • MiFID II C(6) carve-out: ESMA identifies that derivative contracts based on electricity or natural gas produced, traded or delivered in the UK may no longer be eligible for the carve-out in C(6) of Annex I of MiFID II, as they will not fall within the “wholesale energy product” definition. Such contracts could, therefore, be considered “financial instruments” for the purposes of MiFID II and MiFIR.

  • Trading obligation for derivatives: Post-Brexit, trading venues established in the UK will be considered to be third-country trading venues for EU purposes. While noting that the large majority of trading in derivatives subject to the trading obligation (Article 28 of MiFIR) is concluded on UK trading venues, ESMA states that it has no evidence that market participants will be unable to continue complying with such obligation in the event of a no-deal Brexit and in the absence of an equivalence decision by the Commission covering UK trading venues. Nevertheless, ESMA will continue to closely monitor how liquidity develops post-Brexit.

  • ESMA opinions on third-country trading venues for the purpose of post-trade transparency and the position limits regime: ESMA has not yet assessed any UK trading venue against the criteria set out in the opinions it gave in 2017 for the purposes of post-trade transparency and the position limits regime (for further information, see the January 5 edition of Corporate & Financial Weekly Digest), but will do so on the request of EU market participants.

  • Post-trade transparency for OTC transactions: ESMA considers the obligations under Article 20 and 21 of MiFIR in the context that investment firms established in the UK post-Brexit will no longer be EU investment firms, but will fall within the category of counterparties established in a third country. EU investment firms will, therefore, be required to make transactions concluded over the counter with UK counterparties public in the EU.

The statement also covers the removal of UK administrators from ESMA’s register of administrators and third-country benchmarks under the BMR and the application of the BMR transitional period defined in Article 51.

Given the uncertainty surrounding Brexit, ESMA states that it may adjust its approach if the timing and conditions of Brexit change, and will announce any changes to its approach as soon as possible.

ESMA’s statement is available here.

©2020 Katten Muchin Rosenman LLPNational Law Review, Volume IX, Number 67


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...