EU Trading Venues and CCPs Exempted from the Open Access Requirements for Exchange-Traded Derivatives

The European Securities and Markets Authority has published a list of trading venues exempt from the open access requirements of the Markets in Financial Instruments Regulation under transitional arrangements for exchange-traded derivatives under the "de minimis" principle. Various national regulators have also delayed the coming into effect of the open access requirements of MiFID II for clearing houses.

MiFIR requires a trading venue to provide open and non-discriminatory access to a CCP so that a CCP can clear trades concluded on a trading venue of their choice, which will in turn allow the members of a trading venue to select the CCP they wish to use for clearing. There is a reciprocal requirement on CCPs to provide open and non-discriminatory access to a trading venue that wishes to clear financial instruments through a particular CCP. These provisions are controversial since they mean that valuable intellectual property and IT systems developed by exchanges effectively must be made available to competitors or new market entrants. It has been argued that the open access requirements make the EU unattractive as a location for exchange businesses due to commercial disadvantages that result for those exchanges which have successfully invested in innovation.

MiFIR provides for a transitional opt-out from the open access requirements for trading venues and clearing houses in relation to ETDs provided that certain criteria are met. ESMA's list specifies four trading venues from Spain, Poland, Norway and Greece that have had their application for exemption approved and one from Sweden whose approval is pending. The four trading venues - MEFF Sociedad Rectora del Mercado de Productos Derivados S.A.U., Giełda Papierów Wartościowych w Warszawie S.A., Oslo Børs ASA and Athens Exchange S.A. - are exempt from the MiFIR open access requirements until July 3, 2020.

The UK Financial Conduct Authority issued a statement on January 3, 2018 stating that it had agreed transitional arrangements for both ICE Futures Europe and the London Metal Exchange. Neither of these trading venues are required to consider open access requests relating to ETDs until the expiry of the transitional period on July 3, 2020. It has also been reported that the Euronext derivatives trading venues in France, Belgium and Portugal have also been granted the same exemption and that approval from the Dutch regulators is pending. The UK and Euronext trading venues have not yet been added to ESMA's list.

Further, the Bank of England has approved the applications of ICE Clear Europe and LME Clear Limited for exemptions from the open access provisions imposed on clearing houses. The German regulator, BaFin, has granted an exemption to Eurex Clearing AG too. These exemptions apply to open access requests from trading venues for ETDs until July 3, 2020.The European Commission published a Report in September 2017 to the European Parliament and the Council recommending that ETDs do not need to be excluded from the scope of the provisions of MiFIR on a Europe-wide basis.

View ESMA's list.

View the FCA's statement.

View the Bank of England's statements.

View BaFin's statement.