Articles 6, 10, 20 and 21 of MiFIR requires European Investment Firms (“IFs”), Systematic Internalisers (“SIs”) and Trading Venues to make public, through an Approved Publication Arrangement (“APA”), post-trade information in relation to financial instruments which are traded on a Trading Venue or traded Off Exchange (i.e. Over-The-Counter). This obligation only requires one counterparty to publish the post-trade information. Where a transaction is executed on an European Economic Area (“EEA”) Trading Venue, the market operators or Investment Firm who operate the Trading Venue have the post-trade transparency obligations (Article 12 of RTS 1).

Where a transaction is executed outside the scope of an EEA Trading Venue, it could be difficult to determine who has the obligations.  We review some common scenarios and identify which party has the obligations to publish the transaction.

A transaction is executed outside of an EEA trading venue

In ascertaining who has the obligations to make transactions public under Article 20 and 21 of MiFIR, ESMA published a number of Regulatory Technical Standards (“RTS”) to provide some guidance. For instance, Section 5 of Article 12 states the seller has an obligation to publish the transaction, subject to the following hierarchy.

1. Systematic Internalisers (“SIs”)

ScenarioBuyerSellerWho has the obligation to report?
(a)SISISI Seller
(b)SIIFSI
(c)IFSISI

As shown in scenario (a), if both IFs are also SIs, the seller has an obligation to publish the post-trade information (section 15 of RTS 1).

However, where the IF is a SI and it entered into a transaction with another non-SI IF (as per scenario (b) or (c) above), the SI will make the transaction public through an APA regardless of which side it is acting for (Article 12(5) of RTS 1 & Article 7(6) of RTS 2).

2. Investment Firms (“IFs”)

ScenarioBuyerSellerWho has the obligation to report?
(a)EU IFEU IFEU IF Seller
(b)EU IFNon-EU IFEU IF
(c)Non-EU IFEU IFEU IF

As illustrated in scenario (a), if a transaction is executed between two EU IFs, the seller is required to make the transaction public through an APA (Article 12(4) of RTS 1 & Article 7(5) of RTS 2). If the financial instrument is entered between an EU IF and non-EU IF, the post-trade transparency obligations will rest on the EU IF regardless of which side they are acting for.

If both sides are non-EU IFs, they would be out of the scope of the obligations under MiFIR.

3. Retail Clients

ScenarioBuyerSellerWho has the obligation to report?
(a)EU IFRetail ClientEU IF
(b)Retail ClientEU IFEU IF

When a transaction is executed between an EU IF and a retail client, the obligations always rest on the EU IF, as a Retail Client is out of the scope of post-trade transparency obligations under MiFIR . For more information, read the Questions and Answers on MiFID II and MiFIR transparency topics published by ESMA here.

We have created a tree diagram below to help you determine who has the obligations under MiFIR post-trade transparency requirements. (This is only applicable to products that are traded on a trading venue or traded off exchange, and therefore not applicable to products where only the underlying is traded on a trading venue, such as non-venue traded CFDs.)

When does the post-trade information need to be published by?

Post-trade information shall be made available as close to real time as is technically possible (Article 7 (4) of RTS 2):

  1. on or before 3 January 2021, post-trade information must be made available to public within 15 minutes after the execution of the relevant transaction;
  2. after 3 January 2021, post-trade information must be made available to public within 5 minutes after the execution of the relevant transaction.

What needs to be published?

The following needs to be published in a post-trade report:

  1. Trading date and time;
  2. Instrument identification code;
  3. Unit price;
  4. Price currency;
  5. Quantity;
  6. Venue of execution;
  7. Publication date and time;
  8. Venue of Publication;
  9. Transaction identification code.

For more details see Table 3 of Annex I of the RTS 1.

If you are unsure whether you need to publish the transactions, please contact us.

Emma Ladlow

Emma works in our Sydney office. She works on implementing changes to regulations, improving and expanding regulatory reporting offered by TRAction and helping with new business initiatives. She has 4 years’ experience in transaction reporting and 7 years’ experience in the finance industry.  She worked for one of the largest financial services organisations in the UK and then moved to Australia in November 2018 to join TRAction.