• Giacomo Breda

Brief analysis and reflection on the equivalence of the regulatory framework of the securities marke

As with the previous regulations, such as the Capital Requirements Directive 4, the MiFID also provides that third-country companies may set up branches or provide services in the EU. MiFID 2 also introduces new options for third-country companies.

First, MiFID 2 (Market in Financial Instruments Directive) or Directive 2014/65/EU of the European Parliament and of the May 15 Council 2014 on markets in financial instruments markets, amending Directive 2002/92/EC and Directive 2011/61/EU and MiFIR or the EU Regulation n.600 / 2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments, which in turn changes the EU Regulation 648/2012, provide "the solicitation reverse".

Where a customer requests of its own services, there is no requirement for the company to third countries to set up a branch (if the client is a professional retail client or elective) or register with ESMA (if the customer is a professional for that client or eligible counterpart) specifically to perform such services.

However, if the company is required to have a branch, it can not market product or service categories and those that the customer requires to that customer or to others except through his or her business branch. Similarly, if a customer requires a service, the enterprise can provide such service without registration, but can not market product or service categories in addition to those required by the customer.

According to Article 39 of MiFID 2, Member States may (but not) require third-country companies intending to provide investment services or to carry out investment activities with or without auxiliary activities to retail or elective retail clients, to create a branch in the relevant Member State. In that case, the branch or branch may be authorized in that Member State only if it meets certain conditions, namely:

  • the company requires and has the authorization to provide services in the country of its establishment and is supervised for compliance with the recommendations of the Task Force (Task Force on the action on financial Prevention of Money laundering and terrorist financing);

  • there are appropriate co-operation arrangements between the regulator of the country of origin and the competent Member State;

  • the branch has sufficient initial capital available freely;

  • the branch appoints one or more people to handle it and each relevant person respects the provisions of the Fourth Capital Requirements Directive on Governance and the Management Body in the same way that all companies follow MiFID;

  • the "home country" of the third country has an agreement with the EEA Member State that is fully in line with the OECD Convention on Income and Capital;

  • the enterprise belongs to an offsetting system authorized or regulated in accordance with the Settlement Compensation Directive.

A branch of a company or branch, in line with Article 39 (always the aforementioned regulation MiFID), must also provide the appropriate regulatory body of the Member State, information about himself, his supervisor, to its management methods and national compliance and to details of its initial (free) share capital. Once authorized, the company must comply with the requirements of the MiFID 2 for the organization, exchanges, conflicts of interest, investor protection (including the rules on disclosure, the adequacy and appropriateness, best execution, management customer orders and the management of eligible counterparties). It must also comply with the relevant rules on trading areas and MiFIR's requirements on transparency and reporting of transactions.

Lastly, Article 46 of the MiFIR provides for an alternative regime for third-country companies wishing to provide investment services or to carry out investment activities with or without auxiliary activities with or without professional clients and with eligible counterparts within the EU with or without setting up a branch. These companies can do so on the basis of registration with ESMA. ESMA, ov true European Securities and Markets Authority, will do so on the basis of rule in which:

  • there is an equivalence decision;

  • the firm is authorized in the jurisdiction where the head office to provide the services and activities that aim to provide the EU and that authorization is subject to effectiveness;

  • ESMA has established cooperation agreements with the third country regulator.

A registration with ESMA will cover the entire EU market. No Member State may impose additional requirements on the third-country enterprise in addition to those provided for in MiFID 2 and MiFIR, or treat such undertakings more favourably than other undertakings.

If a third-party enterprise is already authorized under Article 39 of MiFID 2, it may provide services to eligible counterparties for professional clients without the creation of other branches. However, it must comply with the same information requirements as referred to in Article 34 of MiFID 2, as applicable to EU businesses. ESMA will keep a publicly available register of third-country registered firms, indicating which services companies can provide and who is responsible for supervising them.

Here comes a question. If, following Brexit, which will lead the United Kingdom out of the European Economic Space (in the near future), in the near future, none UK corporation can apply to ESMA for registration, or it will not be clear until the Commission Europe did not adopt a decision of equivalence of UK financial players. Then, in the absence of uniform equivalence decision at European level, individual Member States would have the discretion, the ability and the ability to allow British companies to operate with eligible counterparts and clients within their jurisdiction?

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