The aim of MiFID is to make European financial markets more transparent and to strengthen the protection of investors. MiFID II revises certain rules and regulations for investment firms and trading platforms.
MiFID II (Markets in Financial Instruments Directive) is a revision of the European Markets in Financial Instruments Directive that came into effect in 2007 and the introduction of the MiFIR regulation. MiFID II states that the laws and regulations are applicable as of 3 January 2017. However, after a proposal of the European Commission the application has been postponed until 3 January 2018.
Scope of MiFID II
With the coming into force of MiFID II, the scope of laws and regulations will be expanded considerably.
More market parties will be subject to supervision under MiFID II than under MiFID I. For instance, MiFID II introduces a new multilateral trading platform; the Organised Trading Facility (OTF). An OTF must have a licence. Companies that wish to provide data reporting services will also be required to have a licence. The number of exemptions with regard to the MiFID licence obligation will be limited. Many parties that were exempt under MiFID will be required to have a licence under MiFID II. This applies, for example, to companies that trade in commodity derivatives, traders who trade for their own account who have access to a trading platform (directly or via direct electronic access) and parties that make use of algorithmic trading.
New activities fall under MiFID II such as, the provision of data reporting services, the trade in commodity derivatives, spot trade in (greenhouse gas) emission rights and the operation of an OTF.
The concept ‘financial instrument’ has been revised. Commodity derivatives and emission rights are now also included under this concept. Companies that provide investment services or carry out investment activities with regard to a financial instrument are required to have a licence for this.
MiFID II expands the powers of the national supervisors. The AFM will be granted the power to suspend the marketing or selling of a financial instrument or structured product in a number of situations. The AFM will also be granted the power to impose position limits on commodity derivatives trades.
In some cases, the MiFID II rules are applicable without the prerequisite of a licence from the Netherlands. This is the case for investment firms with a licence from another EU Member State. Activities for which the licence has been provided in the Member State of origin can be carried out in anywhere in the European Union (EU) with this European passport. There are specific rules for persons who provide services or perform investment activities for professional or retail investors in the Netherlands from a country outside of the EU.
Revision of MiFID I
The revision of MiFID and the introduction of the Markets in Financial Instruments Regulation (MiFIR) are referred to jointly as MiFID II. MiFIR is a European regulation. This means that this regulation has direct binding legal force and does not need to be implemented into the Dutch law, for instance in the Dutch Financial Supervision Act (Wft).
The aim of MiFID II is to repair the shortcomings of MiFID and to improve the functioning of financial markets and the protection of investors. MiFID was revised to adapt to the major changes on the capital markets in this last decade. The evaluation of MiFID showed that there were a number of shortcomings, for example, in the field of transparency, supervision of OTC trade (over-the-counter) and technological developments, such as High Frequency Trading (HFT). There were also insufficient rules for markets that were still barely regulated, such as the trade in derivatives and structured products.