Since its implementation in November 2007, the Markets in Financial Instruments Directive (MiFID) has been the cornerstone of capital markets regulation in Europe. However, since its inception, not all benefits have been fed down to the end investor as envisaged. MiFID II is aimed to address the shortcomings of the original MiFID release and has been amended with measures as a result of the lessons learned from the financial crisis.
MiFID II Compliance
In addition to upgrading the current regime for equities markets, the second Markets in Financial Instruments Directive proposes to extend this revised regime to a far wider range of product classes, including over-the-counter (OTC) derivatives and fixed income products. MiFID II will most certainly have a profound impact on the operations of financial institutions that distribute and trade financial instruments not only in the EU but globally as well due to the many cross-border implications of the directive. In fact, this legislation, which seeks to protect investors by significantly raising the standard for transparency on investment houses, will likely confound even well-intentioned trading organizations doing their best to comply with the directive, much like we are seeing with the EU’s General Data Protection Regulation (GDPR).
At the highest level, MiFID II requires firms to prove they have acted honestly, fairly and professionally in accordance with the best interests of their clients at all times. If questions about a trade arise, or regulators field potentially credible complaints of malfeasance, investment banks must show that they:
- Understood their clients’ investing criteria and made suitable recommendations
- Offered products that matched the needs and investment objectives of their customers
- Provided relevant reports to clients, including an assessment of suitability
- Distributed marketing communications that were fair, clear and straightforward
- Avoided remuneration and sales targets that incentivized staff to recommend inappropriate financial instruments to retail clients
- Delivered clear and relevant information at all times
Article 16 of MiFID II indicates that firms must capture all communications that lead to a transaction, including all electronic communications—email, social media, telephone calls, etc.—as well as, interestingly enough, face-to-face meetings. Firms must also “take all reasonable steps” to ensure that communications do not occur on channels that cannot be captured.
The unfortunate implication for compliance staff is that firms must now control content from multiple systems and define new policies to capture communications from content sources that may not currently be recorded and archived, such as WhatsApp, Slack or other emerging messaging tools. Depending on one’s interpretation, this reveals an interesting limitation within the MiFID infrastructure as it is a forward looking piece of legislation that may practically require firms to utilize technologies that were deployed five to ten years ago to maintain a record of all relevant conversations or push firms to discard legacy systems and invest in modern technology that is specifically designed to enable firms to capture, retain and supervise any form of communications content does not have encryption technology to prevent records. In the short term, this may create a significant strain on compliance staff, but would, overall, create a more efficient means to address compliance in a comprehensive manner, providing that context that forms the core of MiFID II requirements. Digital finance and investment platforms actually have an advantage in this regard; most, if not all, digital finance and investment platforms utilize either a proprietary communications interface or one that is synchronized with the clients’ email of choice, minimizing multiple different communication media, allowing easy maintenance of conversations and shared information.
Most importantly, MiFID II is not just a compliance exercise. There are major strategic implications that could bring market opportunities and competitive advantage for those who start to plan in advance or potential revenue loss for those who fail to react.
MiFID II must be aligned to a number of other regulations that are being implemented at a global, European and local (domestic) level. Therefore, many firms are responding by considering multiple related regulations, as for example aligning Dodd Frank, Basel III and Capital Requirements Directive (CRD) IV, European Market Infrastructure Regulation (EMIR), Market Abuse Directive (MAD) II and MiFID II under one regulatory change program with thematic workstreams across regulations. This move will provide a much more controlled, consistent and efficient implementation, avoiding duplication of work in overlapping areas. Firms need to understand the impact, both on their organization as well as on the market overall, to assess the specific compliance requirements on their organization and determine potential commercial opportunities.
According to a PWC report, over the coming months, affected firms and businesses should conduct the following activities:
- Strategy: Identify any business threats and strategic opportunities arising from MiFID II.
- Revenue impacts: Determine areas of MiFID II that will have revenue and business structure impacts. What should you be doing to prepare for MiFID II?
- Governance: Bring together a Steering Committee and a Working Group to co-ordinate initial activity and get the right people from the business involved.
- High level planning: Gauge key timings and “must do now” activities plus early indicative IT budgeting • Regulatory priority: Look for interdependencies with other regulatory changes to prioritise key workstreams and identify implementation efficiencies.
- Public policy: Link business impact analyses into public and lobbying policy.
- Education: Deliver knowledge of the changing landscape early.
MiFID II will also command significant changes in business and operating models, systems, data, people and processes. As a result, a fundamental transformation will emerge. The biggest impact will be experienced by banks, broker dealers and trading venues. Additionally, investment managers, insurance firms, independent financial advisors (IFAs), custodian banks and other asset servicing entities will also need to undertake a substantial effort.
MIFID II and Brexit
One may certainly expect the UK’s financial services industry to be impacted by Brexit+MIFID implementation. However, the nature of the impact is quite debatable and as yet unknown and will depend on what model is eventually negotiated for the relationship between the UK and the EU in place of the UK’s current position as a full member of the EU. Of particular relevance for the financial services industry will be what the UK’s access to EU markets will look like. There are difficult decisions to be made against an uncertain background. Some may need to establish subsidiaries in the EU, with these acquiring EU passporting rights, but for some the capital requirements may make this a costly exercise.
The general consensus is that the UK’s exit from the EU will not see major changes to UK financial services legislation deriving from the EU. Some of the rules are already in place, and many of the changes have been made at the UK’s behest. This would potentially make it easier for UK firms to access the EU market through the third-country provisions of MiFID II and MiFIR (Regulation on Markets in Financial Instruments and Amending Regulation), on the basis of equivalence.
The FCA made it clear in a statement in July 2016 that, as far as they are concerned, it’s business as usual for now. Until the UK formally withdraws from the European Union, EU law such as MiFID I will continue to apply, and firms should continue to work on the implementation of new EU legislation such as MiFID II. MiFID II will need to be transposed into UK law by 3 July 2017, and MiFID II and MiFIR will apply in the UK from 3 January 2018, unless the terms of withdrawal are agreed before that date.
For additional resources and guidance on application of MiFID II, please refer to the following:
PWC Report: Understanding MiFID II
Ernst & Young: Capital Markets Reform: MiFID II
FCA Guidance on MiFID II