The EU ETS operators probable don't put to much weight whether they trade in the spot market or in emissions derivatives markets (particularly given the availability of financial products such as "daily futures" for instance), nevertheless, from regulatory point of view under MiFID II draft Directive each of these markets will be covered by distinct exemption. 

 

Each of these exemptions have its own strict perimeters, which must be observed, unless EU ETS operator intends to apply for a MiFID licence.

 

 

 

The MiFID II EU ETS operators exemption covers emission alllowances in themselves (spot market), which are classified under MiFID II as financial instruments, however, its application to emission derivatives rises ambiguities on the ground of wording of the provision at issue.

 

As opposite to some other exemptions, which explicitly refer to "emission allowances or derivatives thereof" the EU ETS operators exemption applies "when dealing in emission allowances" and does not include clear reference to emission derivatives products.

 
It seems that the problem may partially be resolved the EU ETS operators using MiFID II ancillary activity exemption, where the application to emission derivatives is beyond any doubt.
 
To conclude, it appears that the EU ETS operators active on both emission markets: spot as well as emissions derivatives, under MiFID II will have to make use of the two distinct MiFID II exemptions to remain outside the scope of financial market strict regulatory regime.
 
The basis for the above construction forms a precondition that the two above-mentioned exemptions can be used in conjunction, but there appears no reasonable ground to exclude such a combination.
 
The alternative solution is a clear regulatory guidance excluding the above ambiguity on the scope of the former of the above-mentioned exemptions.