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ESMA’s opinions help to better understand:
under which circumstances transactions executed on non-EU trading venues will be subject to the MiFIR post-trade transparency rules; and
whether positions held in contracts traded on non-EU venues will be subject to the MiFID II position limit regime.
The opinions clarify that, where non-EU trading venues meet a set of objective criteria, EU market participants concluding transactions on these trading venues:
do not have to make those transactions public in the EU under MiFIR; and
commodity derivative contracts are not considered as economically equivalent over-the-counter (EEOTC) contracts for the purpose of the position limit and position reporting regimes under MiFID II.
ESMA’s opinions are accompanied by Questions and Answers that provide further guidance on the process that ESMA asks market participants to follow.
ESMA has devised the procedures described in the opinions to provide legal certainty to market participants and to find a pragmatic way forward in two highly technical areas of the MiFID II framework which should contribute to applying MiFID II in a convergent fashion as of 3 January 2018. Therefore, ESMA, encourages market participants who are active in non-EU venues and are unsure about their application of the transparency and position limit regimes to make their national competent authority aware as soon as possible.
ESMA would like to emphasise that its approach is without prejudice to any equivalence assessment that may be performed by the European Commission in the future.