On 9 May 2013, the EU Council published a note on the current state of play regarding MiFID II.
The note confirms that there is currently no qualified majority supporting a compromise on the issue of access to trading venues and central counterparties (CCPs). Articles 28 and 29 of MiFIR require CCPs to accept transactions executed on different trading venues on a non-discriminatory basis (provided that those venues comply with the operational and technical requirements of the CCP) and for trading venues to provide access (including data feeds) on a transparent and non-discriminatory basis to CCPs that wish to clear transactions executed on the trading venue. Delegations appear to be split into two broad groups:
- one in favour of maintaining the provisions of Articles 28 and 29; and
- the other in favour of deleting these Articles which they believe will lead to trading fragmentation and a loss of liquidity.
The Presidency has proposed a compromise solution, which is based on a non-discriminatory access but which also creates safeguards related to orderly functioning of markets and liquidity fragmentation. Although this solution is acceptable to several delegations, concerns remain. As such, the Presidency suggest that, if these concerns are not resolved, the EU Council’s Committee of Permanent Representatives note the divergence of view in its minutes and invite the EU Presidency to start negotiations with the EU Parliament on the basis of the Council’s compromise proposal, taking into account the need for further work to try to resolve outstanding issues.