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MiFID II: The Legislative Proposals

Wednesday, October 26, 2011

Sarah Jane Leake | Bloomberg Law Proposal for a Directive of the European Parliament and of the Council on markets in financial instruments repealing Directive 2004/39/EC of the Parliament and of the Council (Recast), COM(2011) 656 final of 20 October 2011; Proposal for a Regulation of the European Parliament and of the Council on Markets in financial instruments and amending Regulation [EMIR] on OTC derivatives, central counterparties and trade repositories, COM(2011) 652 final of 20 October 2011 Almost four years after the Markets in Financial Instruments Directive1 (MiFID) came into force, the European Commission has, after extensive consultation,2published formal legislative proposals to revise the legislation and tighten up the way in which financial markets are regulated throughout the EU.

Cause for Change

A core pillar in EU financial market integration, MiFID governs the provision of investment services in financial instruments by investment firms and banks, as well as the operation of traditional stock exchanges and multilateral trading facilities (MTFs), in all 27 Member States.3 Although MiFID has helped to create a more competitive and integrated EU financial market, and in turn brought more choice and lowered costs for investors, financial markets across Europe, and indeed internationally have changed significantly since its introduction in 2007. The recent crisis served to highlight a number of flaws in Europe's regulatory architecture for financial services. Recent market and technological developments, for example, have outpaced a number of provisions in MiFID and, as such, were left to fall outside its scope. In the wake of the crisis, and to help deliver the G20 commitment to increase transparency in less regulated markets,4 the Commission considered it necessary to overhaul the MiFID regime and modernise the way in which it regulates Europe's financial markets.

Structure of the Proposals

Together with the Commission's recent legislative proposal on over-the-counter (OTC) derivatives, central counterparties, and trade repositories,5 "MiFID II" seeks to establish safer, sounder, and more transparent and reliable financial markets. The Commission's latest proposals comprise a Directive, which would require the provisions to be transposed into the national law of all Member States, and a Regulation, which would have direct effect on EU market participants without necessitating transposition. In line with the recommendations of the de Larosi

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