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MiFID II - overview of rules and regulations

The European legislative process is rather complex. Therefore, an overview of the various new rules and regulations of MiFID II is provided below.

Framework rules

The MiFID directive and regulation (MiFIR) contain the legislative framework which was adopted and published in the Official Journal of the European Union on 12 June 2014. The Ministry of Finance is preparing a legislative proposal for the implementation of the MiFID directive in the Dutch Financial Supervision Act.

Lower level rules

You can find most of the lower level rules under MiFID II in delegated acts drafted by the Commission and in the technical standards drafted by ESMA. There are 2 types of delegated acts: 2 delegated regulations and 1 delegated directive. One delegated regulation falls under MiFID and the other one falls under MiFIR. These delegated regulations have direct effect and do not need to be implemented in national legislation. There is only 1 delegated directive (under MiFID). The delegated directive does not have direct effect. There are also 2 types of technical standards: Regulatory Technical Standards (RTS) and Implementing Technical Standards (ITS). The technical standards have direct effect after the Commission has approved and published them as Commission Delegated Regulations.

Delegated acts

Delegated acts are written by the Commission, but they are based on the advice of ESMA. There are 2 types of delegated acts: a delegated directive and delegated regulations. There is 1 delegated directive and a delegated directive needs to be implemented in national legislation for effect. In Dutch law, the delegated directive will be implemented in the Besluit gedragstoezicht financiële ondernemingen (Bgfo). There are two delegated regulations. The delegated regulations have direct effect, therefore these delegated regulations do not need to be implemented in national legislation.

Technical standards

The RTS mainly contain capital market rules, such as pre- and post-trade transparency requirements, and also best execution. The ITS contain the elaboration for supervision processes and are mainly aimed at supervisors. ESMA incorporated the reactions from the public consultation in the final text of these standards.

Guidelines

ESMA received instructions to draw up guidelines for a number of topics. The objective of the guidelines is European harmonisation of the supervision of specific MiFID II requirements.

This concerns in any case the following guidelines:

  • guidelines for the knowledge and competence of advisers: these guidelines deal with the knowledge and competence requirements of advisers and staff who provide information about financial instruments to clients
  • guidelines for complex financial instruments: the term complex financial instruments is relevant in order to determine when the appropriateness assessment pursuant to Article 4:24 of the Dutch Financial Supervision Act must be made
  • guidelines for the suitability of members of the management body of investment firms and banks: ESMA and EBA will establish these guidelines together
  • guidelines for the suitability of members of the management body of trading venues: ESMA will establish these guidelines
  • guidelines for the appropriate coordination of circuit breakers of trading platforms: ESMA will establish these guidelines.

Implementation

In the Netherlands it is the responsibility of the Ministry of Finance to implement a directive in national legislation, in case of MiFID II in the Wet financieel toezicht (Wft) and the Bgfo

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