On 11 April 2014, the EU Commission published a consultation document requesting views on what constitutes an FX “financial instrument” for the purposes of MiFID and what does not, particularly in the context of spot FX. The consultation follows on from the letter of the Global Financial Markets Association to the EU Commission regarding the treatment of “FX Security Conversions” (see this blog post for more detail) and remains open until 9 May 2014.
The consultation notes that the majority of EU Member States do not differentiate clearly between FX spot and FX forward transactions and makes clear the intention of the Commission to issue regulations to clarify the position. The main thrust of the consultation document aims at identifying the point at which a spot contract can be considered a forward contract. It recognises that, whilst two business days is the most widely used point of delineation, cut-off points range from between t+0 and t+7, asking what settlement period or periods would be most appropriate, and whether non-deliverable forwards merit different treatment.
 And therefore, by extension, also relevant for the purposes of EMIR, the Capital Requirements Directive, the Central Securities Depositories Regulation, the Market Abuse Regulation and the Benchmarks Proposal