ESMA published the two decisions of its board of supervisors on October 11 (both dated September 26, 2018). The following decisions were made on the delegation to the ESMA chair of assessments of third-country trading venues and related to:

• A decision on the assessment for the purposes of Articles 20 and 21 of the Markets in Financial Instruments Regulation (Regulation 600/2014) (“MiFIR“) (ESMA70-155-5775).
• A decision on the assessment for the purposes of Article 57(4) of the MiFID II Directive (2014/65/EU) (ESMA70-155-5905).

The decisions were regarding the treatment of transactions executed by EU investment firms on third-country trading venues, for post-trade transparency under MiFIR, and the treatment of positions held in contracts traded on those venues for the position limit regime under the MiFID II Directive. ESMA published opinions in December 2017 specifying that, subject to third-country trading venues meeting a set of criteria, investment firms trading on those trading venues are not required to make transactions public in the EU via an approved publication arrangement (“APA“).

In the decisions, the board of supervisors delegates responsibility for non-controversial assessments of third-country trading venues for these purposes to the ESMA chair. The decisions specify the criteria that the chair will use when assessing whether to consider a third-country entity as a trading venue for the purposes of Articles 20 and 21 of MiFIR or Article 57(4) of the MiFID II Directive. The board of supervisors retains its powers to perform controversial assessments of third-country trading venues.