The legislative frameworks of both MAR and MiFID II are in effect (i e decided upon and published in the EU’s Official Journal).
|MAD II||Jul 3rd 2016||MAR||596/2014||CSMAD||2014/57/EU|
|MiFID II||Jan 3rd 2018||MiFIR||600/2014||MiFID II||2014/65/EU|
MAR/CSMAD legislation process
The MAR provisions set out in the Regulation will apply from July 3rd 2016, with the exceptions of some sections that are dependent upon MiFID II (e g OTFs).
On the same date, the Directive (CSMAD) should be transposed to national law, and the current Directive 6/EU/2003 will be repealed. The Regulation does not need to be transposed, only “translated”, since it applies all over EU with direct effect. However, the UK has decided to opt out (they can opt-in on a case-by-case basis). The Swedish FSA (“Finansinspektionen”) has informed that the Swedish Government will not be able to transpose the Directive into Swedish law by that date. A target date for the Swedish transposition is set to Feb 1st 2017.
Prevent and detect market abuse and orders that may cause disruptions on the market
Sell-side firms have already since some time been adressing requirements concerning the monitoring of order flow. The requirements on a sell-side firm are not only driven by regulatory minimum requirements. As a comparison, Best Execution requirements today do not constitute the minimum level of which sell-side firms operates their execution. The requirements (on the best possible result when executing client orders) are much higher in practice. This also true for systems and processes aimed at preventing and detecting market abuse (note: there is already a Market Abuse Directive in application today, together with ESMA Guidelines).
In practice, for firms with a large algorithmic order flow, the requirements are much higher than the minimum requirements stipulated by the legislation. Some examples:
Economies of scope and scale
MAR and MiFID II will increase the requirements, both from a hygiene perspective (compliance) and from a competitive perspective (trading-performance). MAR is the most urgent from a timing perspective, but with MiFID II on the horizon the sell-side must also weigh in Best Execution, TCA and algo monitoring in their technology investment decision.
Choosing the best way forward
Obviously, there are a number of possible approaches a firm can have to the upcoming regulatory changes. Some firms will prefer to wait and see; others will want to make sure they have all bases covered. The more common approaches include:
Clearly, we have reached a point where banks and investment firms have to make a choice, and the time to act is now.
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