The different approaches to the interpretation of MiFID I across Member States mean that there is no commonly-adopted application of the definition of derivative or derivative contract in the EU for some asset classes. Whilst this issue has in the past been noted as a concern since the implementation of MiFID, the practical consequences have come to the forefront with the implementation of the European Markets Infrastructure Regulation (EMIR).
ESMA considers it essential to ensure, amongst other things, a consistent application of EMIR in the EU and is therefore considering the adoption of guidelines to ensure the consistent classification of certain financial instruments as derivatives. This will allow a common approach by NCAs in the implementation of EMIR from the date these guidelines start applying and until MIFID II and the relevant implementing regulation will start applying.
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