MiFID II/MiFIR application to the carbon market

 


 

 

MiFID II/MiFIR overall aims are to enhance the efficiency, resilience and integrity of financial markets, in particular by:

 

1. achieving greater transparency: introduction of a pre- and post-trade transparency regime for non-equities and strengthening and broadening of the existing equities trade transparency regime;

 

2. bringing more trading onto regulated venues: creation of a new category of platforms to trade derivatives and bonds - the organised trading facilities (OTFs) - and of a trading obligation for shares on regulated venues;

 

3. fulfilling the Union's G20 commitments on derivatives:

 

mandatory trading of derivatives on regulated venues,

 

- introduction of position limits and MiFID reporting requirements for commodity derivatives,

 

- broadening the definition of investment firm to capture firms trading commodity derivatives as a financial activity;


4. facilitating access to capital for SMEs: introduction of the SME Growth Market label;


5. strengthening the protection of investors: enhancement of the rules on inducements, a ban on inducements for independent advice and new product governance rules;


6. regulating high-frequency trading (HFT) imposing requirements on trading venues and on firms using HFT;


7. introducing provisions on non-discriminatory access to trading and post-trading services in trading of financial instruments notably for exchange-traded derivatives.

 

It is noteworthy, MiFID II is a package of EU legislation, which regulates both retail and wholesale investment business. MiFID II affects in particular investment banks, interdealer brokers. stockbrokers, investment advisers, corporate finance firms and venture capital firms, trading venues including Regulated Markets (RMs), MTFs, and prospective OTFs, prospective Data Reporting Service Providers, investment managers, but equally unregulated entities trading commodity derivatives and emission allowances.

 

 

Emission allowances' treatment

 

 

Current general approach consists in excluding emission allowances as financial instruments under the Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (MiFID I), but capturing derivative contracts based on such allowances (with the exception of Romania, where EUA’s were already classified as financial instruments).

 

Strictly speaking, derivatives relating to emission allowances, like commodity derivatives, are currently within the MiFID scope if they must or may be settled in cash or have the characteristics of other derivative financial instruments (most common example, if they are traded on regulated market or multilateral trading facility (MTF) - see Article 38(3) of the Commission Regulation (EC) No 1287/2006 of 10 August 2006). 

 

This covers the overwhelming share of the existing EU carbon market consisting mostly in transactions in emission allowances in the form of derivatives (futures, forwards, options, swaps), which are already subject to EU financial markets regulation.

 

Under the MiFID II approach, however, the scope of the EU financial markets legislation would be extended to apply to the spot segment of the carbon market.

 

This is achieved by classifying emission allowances (and other ETS compliance units) as financial instruments under MiFID (i.e. by listing them as a new class of financial instruments in Annex I Section C of that Directive). 

 

MiFID II establishes emission allowances as a particular category of financial instruments under point (11) of Section C of Annex I of that directive, and lists derivatives of emission allowances under point (4) of Section C of the said Annex.

 

It is noteworthy that "the definition of commodity derivatives does not include derivatives of emission allowances, as point (4) of Section C of Annex I of MiFID II is not cross-referred to in the definition of commodity derivatives" (Consultation Paper ESMA's guidelines on information expected or required to be disclosed on commodity derivatives markets or related spot markets under MAR, 30 March 2016, ESMA/2016/444, p. 13).

 

 

Emissions-Mifid2 

 

 

UK Financial Conduct Authority (FCA) in the document Markets in Financial Instruments Directive II Implementation – Consultation Paper I (CP15/43), December 2015 (p. 267, 268) observes emission allowances under the MiFID II are covered in four, sometimes overlapping, ways:

 

- Article 6(5) of the Auctioning Regulation deems as an investment service or activity the reception, transmission and submission of a bid for a financial instrument (the "five-day future" auction product) on an auction platform by an investment firm to which MiFID applies or a CRD credit institution.

 

- The Auctioning Regulation also regulates bids for allowances in the form of two-day spot contracts.

 

- An emission allowance is itself a financial instrument (Section C11 of the Annex I to the MiFID II).

 

- An option, future, swap, forward rate agreement or any other derivative contract relating to emission allowances is included as a derivative under Section C4 of the Annex I to the MiFID II when it may be settled physically or in cash.

 

FCA notes there is "no explanation about how all this overlapping legislation fits together" but in the FCA's view, they work like this:

 

(1) An emission allowance auctioned as a five-day future or a two-day spot contract is regulated under the Auctioning Regulation.

 

(2) The five-day future auction product is a financial instrument and is regulated under MiFID. It is included under Sections C4 and C11 of the Annex I to the MiFID II.

 

(3) The two-day spot contract product is also a financial instrument. It is included under Section C11. It is therefore also regulated under MiFID.

 

(4) In the FCA's view an emission allowance (including when auctioned under the auction regulation) will not come within C1.

 

(5) The auction regulation covers the reception, transmission and submission of a bid.

 

This corresponds to the MiFID activities of the reception and transmission of orders in relation to one or more financial instruments, execution of orders on behalf of clients and dealing on own account.

 

(6) The Auctionping Regulation provides certain exemptions for aircraft operators and others.
These exemptions continue to apply whether or not a MiFID exemption is available, but only for bidding activities covered by the auction regulation.

 

(7) The MiFID activities that apply to a product covered by the Auctioning Regulation are not limited to the MiFID activities listed in paragraph (5) of this list.
All the MiFID investment services and activities apply to emission allowances auctioned as a financial instrument.
Therefore, for example, advising on bids for emission allowances auctioned as a five-day future is covered by MiFID.

 

Interestingly, also under Australia carbon price framework emission allowances were classified as financial products. This reflects current legislative tendencies and the growing belief that the financial market infrastructure poses more safe and efficient regulatory environment for emission allowances' trading than the earlier quasi-commodity arrangements.

 

 

Consequences of the carbon units' reclassification

 

 

The commonly-voiced effect for the regulatory U-turn is the professional intermediaries in spot emissions trading will have to apply for MiFID licence.

 

But market effects are more far-reaching.

 

The European Commission's MEMO-14-305 already was mentioning, in effect of MiFID II amendments "the spot market will be aligned with what is applicable to the EUA derivatives market".

 

Pursuant to the Report on the functioning of the European carbon market, accompanying the document Report from the Commission to the European Parliament and to the Council, Climate action progress report, including the report on the functioning of the European carbon market and the report on the review of Directive 2009/31/EC on the geological storage of carbon dioxide of 18 November 2015 (COM(2015) 576 final), p. 24, the above re-classification means that "MiFID2 rules applicable to traditional financial markets (those including carbon derivatives trade on leading platforms) will also apply to the spot segment of the secondary carbon market (transactions in emission allowances for immediate delivery in the secondary market, currently unregulated at EU level), putting it on equal footing with the derivatives market in terms of transparency, investor protection and integrity".

 

The above Report of November 2015 refers, moreover, to some pieces of financial market legislation that will apply to the carbon market by virtue of cross-references to MiFID II definitions of financial instruments.

 

This is, in particular, the case of Market Abuse Regulation (MAR), which will cover transactions and conduct involving emission allowances, both on secondary markets and in the EU ETS auctions in the primary market.

 

According to the said Report of November 2015, similarly, a cross-reference to MiFID II in the Anti-Money Laundering Directive will trigger a mandatory application of customer due diligence checks by MiFID-licensed carbon traders to their clients in the secondary spot market in emission allowances (the said Report observes, due diligence checks are already mandatory in the primary market and in the secondary market in emission allowances' derivatives).

 

MiFID II and MAR adaptations to carbon market specificities are:

 

- specific exemptions from MiFID II for carbon market participants (including on the grounds of ancillary character of such activity to the core activity, essentially addressed to compliance buyers and entities trading on behalf of others on a limited scale);

 

- inside information disclosure duty only for largest participants/emitters;

 

- more detailed position reporting (but no position limits) by trading venues;

 

- treating emission allowances as a separate category under pre- and post-trade transparency obligations (to facilitate development of adapted implementing rules);

 

- full coverage of emission derivatives (similarly to derivatives with 'financial' underlying and unlike commodity derivatives).

 

See more detailed remarks on:

 

- specific MiFID II exemption for EU ETS operators (applicable to emission spot market), and

 

MiFID II ancillary activity exemption (capturing spot and emission allowances' derivatives).

 

 

Key secondary legislation

 

 

Among key level 2 measures to cover details of provisions under MiFID II that are being developed, but still remain to be finally set, are :

 

- the determination of the thresholds to be used in determining ancillarity under MiFID II,

 

- secondary markets' transparency requirements in respect of emission allowances and their derivatives, including thresholds allowing for their determination as Liquid Markets under MiFID II.

 

Given MiFID II applicability influences MAR, the issue of level 2 measures also involves thresholds for application of inside information disclosure duty to carbon market participants under MAR.

 

 

Primary market

 

 

Oversight in the primary market will continue to be covered by the Auctioning Regulation, other than issues related to market abuse, where the Market Abuse Regulation (MAR) will be directly applicable.

 

 

MiFID II legislative path - key dates and documents

 

 

20 October 2011 - the European Commission adopted two legislative proposals, a directive and a regulation, for the review of MiFID I.

 

14 January 2014 - the European Parliament and the Council reached political agreement on a compromise text (see the Council communication of 19 February 2014 as well as the final compromise texts of MiFID II and MiFIR: Markets in financial instruments: Council confirms agreement with EP).

The final legislative texts of MiFID II and MiFIR were approved by the European Parliament on 15 April 2014 and by the European Council on 13 May 2014.

 

The two texts were published on the Official Journal on 12 June 2014 and entered into force on the twentieth day following this publication – i.e. 2 July 2014:

  

- MiFID II: Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.06.2014, p. 349),

 

and

 

- MiFIR: Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.06.2014, p. 84).

 

MiFIR is a regulation, hence it will automatically become part of EU Member States' domestic laws on the date on which it applies.

 

Given MiFID II date of effect is 2 July 2014, and it initially was planned to enter into force after 30 months, thus the original starting date for the compliance requirement was 3 January 2017.

 

The above MiFID II/MiFIR application date has been subsequently extended by 1 year - i. e. till 3 January 2018 

 

Date of transposition of MiFID II into the EU Member States' national laws initially was 3 July 2016, and has been subsequently extended until 3 July 2017 (Article 93(1) of MiFID II - see Article 1(7) of the Directive (EU) 2016/1034 of the European Parliament and of the Council of 23 June 2016 amending Directive 2014/65/EU on markets in financial instruments).

 

The main milestones of the legislative process in this regard were:

 

1. The process has been ignited by ESMA (ESMA's Note of 2 October 2015 on MIFID/MIFIR implementation: delays in the go-live date of certain MiFID provisions (ESMA/2015/1514) and the European Parliament's Press release of 27 November 2015);

 

2. The European Commission has made the legislative proposition for the prolongation on 16 February 2016 (see:

 

European Commissions' press release,

 

European Commission's Proposal for a Regulation of the European Parliament of the Council amending Regulation (EU) No 600/2014 on markets in financial instruments, Regulation (EU) No 596/2014 on market abuse and Regulation (EU) No 909/2014 on improving securities settlement in the European Union and on central securities depositories as regards certain dates, 10.2.2016, COM(2016) 57 final, 2016/0034 (COD)),

 

Proposal for a Directive of the European Parliament of the Council amending Directive 2014/65/EU on markets in financial instruments as regards certain dates, 10.2.2016, COM(2016) 56 final, 2016/0033 (COD);

 

3. On 7 April 2016 the European Parliament adopted the aforementioned European Commissions' proposal to postpone the MiFID II entry into force (see EU Lawmakers Approve MiFID II Market Rule Delay by One Year);

 

4. The legislative process for 1-year delay has been finalised:

 

as regards MiFID II - with the adoption of the Directive (EU) 2016/1034 of the European Parliament and of the Council of 23 June 2016 amending Directive 2014/65/EU on markets in financial instruments,

 

- as regards MiFIR - with the adoption of the Regulation (EU) 2016/1033 of the European Parliament and of the Council of 23 June 2016 amending Regulation (EU) No 600/2014 on markets in financial instruments, Regulation (EU) No 596/2014 on market abuse and Regulation (EU) No 909/2014 on improving securities settlement in the European Union and on central securities depositories.

 

MiFID II/MiFIR is supplemented by the extensive set of level 2 legislation:

 

- Commission Delegated Regulations supplementing MiFID II and MiFIR - see Official Journal of the European Union, L 87, 31 March 2017,

 

- Regulatory Technical Standards ("RTS") and Implementing Technical Standards ("ITS").

 

 

 

 

 

 

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Last Updated on Wednesday, 28 June 2017 00:31
 

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