Under MiFID II members and participants of trading venues must report to the trading venue on a daily basis a complete breakdown of their positions in commodity derivatives, emission allowances, and derivatives of emission allowances, as well as those of their clients and the clients of those clients and so on down to the end client (Article 58(3) MIFID II).

         
          
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4 April 2023

Joint association (CMC, EFET, ISDA, FESE, FIA, IETA, Europex) pre-trilogue comments on the MiFID II / MiFIR Fundamental Review in relation to commodity derivatives

 

2 March 2023

European Parliament Report on the proposal for a directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments (COM(2021)0726 – C9‑0438/2021 – 2021/0384(COD))

7c. in Article 58, paragraph 1 is amended as follows:

(a) in the first subparagraph, point (a) is replaced by the following:

‘(a) make public two weekly reports, of which one excluding options, with the aggregate positions held by the different categories of persons for the different commodity derivatives or emission allowances or derivatives thereof traded on their trading venue, specifying the number of long and short positions by such categories, changes thereto since the previous report, the percentage of the total open interest represented by each category, the total trading volume per day, expressed as the number of derivatives contracts bought or sold in a given trading day, for each category, and the number of persons holding a position in each category in accordance with paragraph 4;’;

(b) the following subparagraph is inserted after the first subparagraph:

‘Member States shall ensure that an investment firm or a market operator operating a trading venue which trades commodity derivatives or emission allowances or derivatives communicates the reports referred to in point (a) of the first subparagraph to the competent authority and to ESMA. ESMA shall proceed to a centralised publication of the information included in those reports.’


23 September 2022

Questions and Answers on MiFID II and MiFIR commodity derivatives topics (ESMA70-872942901-36) updated

The revised Q&A document reflects mainly the amendments introduced by the Recovery Package for commodity derivatives, including those introduced by the entry into force of the latest technical standards, in the field of position reporting the main changes consist in excluding securitised derivatives based on commodities or commodity indices from position reporting.


26 July 2022

Commission Implementing Regulation (EU) 2022/1300 of 24 March 2022 amending Implementing Regulation (EU) 2017/1093 laying down implementing technical standards with regard to the format of position reports by investment firms and market operators published in the EU Official Journal


12 July 2022 

ESMA Opinion on classification of counterparties in weekly position reports (ESMA70-156-6046) states that for the purpose of the weekly position reports on commodity derivatives and emission allowances derivatives under MiFID II, third-country financial entities should be classified as they would be classified if they were established in the EU.


28 March 2022

ESMA Final Report, Emission allowances and associated derivatives, ESMA70-445-38 - ESMA recommends removing the position reporting in emission allowances and weekly position reporting requirements from MiFID II.

 

 

The trading venue must then provide those reports to the national competent authority (NCA). In addition, investment firms which undertake trading in commodity derivatives, emission allowances or derivatives of emission allowances outside a trading venue must report on a daily basis their positions in all commodity derivatives, emission allowances and derivatives of emission allowances, as well as those of their clients and the clients of those clients and so on down to the end client to the relevant NCA (Article 58(2) MIFID II).

 

“End client” classification

 

The wording of the above provisions raises some ambiguities with respect to the scope of the positions reporting requirement. In particular, as there is no definition of “end client” in MiFID II/MiFIR, the document of GFMA, ISDA and FIA - Level 3 Q&A: Commodity Derivatives Position Reporting (MiFID II, Article 58) has proposed to resolve this problem in light of the Article 4(1)(9) MiFID II definition of “client” ("any natural or legal person to whom an investment firm provides investment or ancillary services").

 

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The obligation to report positions under Article 58 of MIFID rests with:

- members or participants of regulated markets, MTFs and clients of OTFs or

- investment firms when executing economically equivalent OTC (EEOTC) transactions on behalf of their clients. 

 

 

GFMA, ISDA and FIA infer the following implications from the said definition:

  • for a person to be a “client” it must receive investment or ancillary services from an investment firm; 

  • if that person (the “client”) is not itself an investment firm, then that client must also be the “end client” as it will not be providing investment or ancillary services, and therefore cannot have any clients of its own; and 

  • if the client is an investment firm, but does not provide investment or ancillary services to another person, then the client will also be the “end client”. 


Accordingly, GFMA, ISDA and FIA argue that not every position taken in a commodity derivative, emission allowance or derivative thereof that is traded on a trading venue or in an economically equivalent OTC (EEOTC) contract will involve a client. For example, an investment firm will not have a “client” where it is dealing on its own account. Where an investment firm enters into an EEOTC with another investment firm, neither firm may be providing investment or ancillary services to the other. Indeed, if both investment firms are dealing on their own account, neither investment firm has a “client”.

Consequently, according to the above organisations, an investment firm would not be required to report positions of a trading counterparty (where such counterparty is not that firm’s client), or those of any client that the trading counterparty may have.

Investment firms should only report their own positions, as well as those of their clients and the clients of those clients, until the end client is reached. 

The UK FCA in the Q&As underlined that end-client is a different concept to that of any ultimate position holders who may not be an end-client according to the definitions within MiFID II.

 

Hedging flag

 

The practical ambiguity emerged whether non-financial entities (NFEs):

- having aggregated positions well below the limit set by the relevant NCA for the respective commodity derivative contract, and
- which do not apply for a hedging exemption from position limit under Article 8 of Commission Delegated Regulation (EU) 2017/591 of 1 December 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council with regard to regulatory technical standards for the application of position limits to commodity derivatives (RTS 21).

are required to flag positions as hedging or speculative based on the conditions established in Article 7 of RTS 21.

However, the ESMA’s stance in this regard is rigorous - irrespective of the above circumstances the positions reports must accurately describe whether the position is risk reducing in relation to the NFE’s commercial activities (Questions and Answers, on MiFID II and MiFIR commodity derivatives topics, ESMA70-872942901-28, Answer 11, updated on 13 November 2017).

In an answer to the Question 18 updated 15 December 2017 ESMA underlined that although the obligation to report positions under Article 58 of MIFID rests with members or participants of regulated markets, MTFs and clients of OTFs or with investment firms when executing EEOTC transactions on behalf of their clients, it is the client’s responsibility to ensure that the client’s position is accurately described in position report. 

The client’s responsibility relates, in particular, to the information whether the positions are for hedging or speculative purposes.

It is, moreover, a matter for the individual client as to how they satisfy this obligation and they may provide an initial instruction that unless informed otherwise, the investment firm should report certain defined positions to be for hedging (or speculative) purposes providing that this is an accurate description at the time. There may, however, be circumstances where a client is able more accurately to assign new transactions to hedging or speculative positions only after the initial trade. In this case the client should ensure that their position report is adjusted accordingly to the hedging or non-hedging nature of their position.

 

Positions reporting in case of matched principal trading

 

MiFID II positions reporting requirement covers also investment firms acting as brokers and using a matched principal model (Questions and Answers, on MiFID II and MiFIR commodity derivatives topics, ESMA70-872942901-28, Answer 12, updated on 13 November 2017). According to the ESMA, investment firms should provide a complete breakdown of positions held on own account and on behalf of clients as the investment firm can end up holding a position even if trading on a matched principal basis. This applies to any investment firm trading in commodity derivatives contracts traded on a trading venue or in economically equivalent OTC (EEOTC) contracts.

ESMA underlined that it is the investment firm’s responsibility to assess whether the transaction executed results in a change in the positions held on own account and/or on behalf of clients.

 

Reporting of end of day zero positions

 

In the answer to Question 13 (Questions and Answers on MiFID II and MiFIR commodity derivatives topics, Positions reporting, updated on 13 November 2017) ESMA invoked the fact that Article 58(2) of MiFID II provides for the reporting, at least on a daily basis, of a complete breakdown of the positions. Nevertheless, ESMA said that end of day zero positions do not need to be reported to the NCA unless the firm showed a positive or negative position in the previous report. In that case, the first time the open position is reduced to zero, a zero position should be reported to the NCA.

 

Reporting positions in "exotic derivatives"

 

In the answer to Question 15 (Questions and Answers on MiFID II and MiFIR commodity derivatives topics, Positions reporting, updated on 13 November 2017) ESMA referred to the issue of the positions reporting application to various instruments listed in Annex I, Section C(10) of MIFID II with an underlying which is not a commodity.

According to the ESMA these instruments must be treated consistently across all rules regarding commodity derivatives in the MiFID II/MiFIR framework. ESMA invoked the purpose of daily reporting, which is to monitor for potential breaches of position limits as Article 58(3) of MiFID II stipulates that daily position reporting enables monitoring of compliance with Article 57(1) of MiFID II. Therefore, all those commodity derivatives contracts with underlyings that are subject to the position limit regime are also subject to position reporting. 

Considering the ESMA’s stance expressed in the said Q&As:

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See also:

 

MiFID II position limits for commodity derivatives 

 

FCA website on position reporting

 

London Stock Exchange, FAQS - MiFID II Commodities Positions Reporting

 

- Positions reporting Question 15, and
- Position Limits Question 10;
it may be concluded that the ESMA’s approach to positions reporting of different types of commodity derivatives covered by Section C(10) of Annex I of MIFID II is as follows:

1. Freight rate derivatives (wet and dry freight)

According to the above ESMA's opinion, freight rate derivatives (wet and dry freight) are subject to the MiFID II positions reporting framework.

2. Derivative contracts relating to indices

ESMA also said that positions reporting should be applied to derivative contracts relating to indices if the underlying index is materially based on commodity underlyings as defined in Article 2(6) of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive.

ESMA considers that the underlying index derivative is materially based on commodities if such commodities have a weighting of more than 50% in the composition of the underlying index.

3. Commodity derivative contract in the form of a “spread” or “diff” contract

A commodity derivative contract in the legal form of a “spread” or “diff” contract is a contract that is cash-settled and whose value is determined by the difference between two reference commodities which may vary in type, grade, location, time of delivery, or other features. Whilst having multiple commodity values underlying it, the commodity derivative is available on a trading venue as a single tradable financial instrument. As a spread contract has no single commodity at a specific place or time as the underlying, it is not possible to link it to a single physical deliverable supply against a contractual obligation to physically settle the trade. It is for this reason all spread contracts are cash-settled and not physically settled. Therefore, according to the ESMA, spread contracts should be treated for the application of positions reporting in the same manner as C10 commodity derivatives which do not have a physical underlying, such as weather derivatives.

4. Other derivatives listed in Section C10 of Annex I of MiFID

Other derivatives listed in Section C10 of Annex I of MiFID II and in Article 8 of Commission Delegated Regulation of 25 April 2016, according to the ESMA are not subject to positions reporting as the underlyings of such derivatives are not considered to be commodities as defined in Article 2(6) of Commission Delegated Regulation of 25 April 2016.

Another aspect is that Directive (EU) 2021/338 of the European Parliament and of the Council of 16 February 2021 amending Directive 2014/65/EU as regards information requirements, product governance and position limits, and Directives 2013/36/EU and (EU) 2019/878 as regards their application to investment firms, to help the recovery from the COVID-19 crisis in Article 1(11) laid down amendments to Article 58 of Directive 2014/65/EU as regards position reporting.

In accordance with those amendments position reporting is no longer applying to securities referred to in Article 4(1), point 44, point (c), of MiFID II, which relate to a commodity or an underlying as referred to in Section C.10 of Annex I to that Directive - therefore, references to those categories of derivatives in the implementing technical standards laid down in Commission Implementing Regulation (EU) 2017/1093 needed to be deleted. These deletions were made by Commission Implementing Regulation (EU) 2022/1300 of 24 March 2022 amending Implementing Regulation (EU) 2017/1093 laying down implementing technical standards with regard to the format of position reports by investment firms and market operators which on 26 July 2022 was published in the EU Official Journal.

 

Quantity field reporting

 

In the Questions and Answers, on MiFID II and MiFIR commodity derivatives topics (ESMA70-872942901-28 (answer to the Question 19 updated on 15 December 2017) ESMA clarified its stance with respect to the population of the quantity field in case of reporting position in contracts that relate to delivery of the same underlying over different periods of time. ESMA said that the Position Quantity held in a contract must be reported in the same unit as used by the Competent Authority to set the position limit for that contract.

The position limits for those contracts that refer to the same underlying commodity but have a variety of delivery periods, e.g. annual (calendar), quarterly, monthly, weekly (whole week, working day week and weekend) or daily are set in units of underlying since a lot does not represent a standard quantity of underlying across all maturities/delivery periods. Thus, for these contracts, the figures reported in the field position quantity must be expressed in units of underlying.

 

Outsourcing 

 

According to the ESMA (Questions and Answers, on MiFID II and MiFIR commodity derivatives topics, ESMA70-872942901-28, Answer 14, updated on 13 November 2017) investment firms can delegate the reporting to third parties but remains responsible for the reports. The investment firm has to comply with the relevant outsourcing requirements specified in MiFID II.

 

Reporting obligations in a chain of investment firms executing trades on behalf of their clients

 

Specific ESMA’s remarks (Questions and Answers, on MiFID II and MiFIR commodity derivatives topics, ESMA70-872942901-28, answer to the Question 17 updated on 15.12.2017) relate to reporting obligations where there is a chain of investment firms that are executing trades on behalf of their clients. ESMA recalled that in such a case each one of investment firms has an obligation to report a complete breakdown of the positions held by all persons down the chain, down to the end client, as defined under Article 58(3) of MIFID II. At the same time, duplicative reporting should be avoided.

Unless firms make arrangements to avoid it, this may arise, for example, where two or more of the investment firms in the chain are members of a trading venue, and therefore have an obligation (under Article 58(3)) to report to the trading venue. To this aim, there is a possibility to outsource reporting, for example, an arrangement in which the first investment firm in a chain will agree with the second that it will report to the trading venue.

The firm which outsources the reporting should make sure that all the necessary and factual information is provided to the reporting agent, since, as was said above, the responsibility for reporting cannot be outsourced.

 

Jurisdictional issues

 

In practice an ambiguity emerged relating to the NCA’s competence in cases where an OTC contract is economically equivalent to more than one exchange-traded derivative (ETD) contract traded on an EU trading venue and where those ETD contracts are not the same derivative contract.

 

 

Commission Delegated Regulation (EU) 2017/591 of 1 December 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council with regard to regulatory technical standards for the application of position limits to commodity derivatives (RTS 21), Article 5(1)


Same commodity derivatives and significant volumes

A commodity derivative traded on a trading venue shall be considered the same commodity derivative as a commodity derivative traded on another trading venue where the following conditions are met:
(a) both commodity derivatives have identical contractual specifications, terms and conditions, excluding post trade risk management arrangements;
(b) both commodity derivatives form a single fungible pool of open interest or, in the case of commodity derivatives defined under point (c) of Article 4(1)(44) of Directive 2014/65/EU, of securities in issue by which the positions held in a commodity derivative traded on one trading venue may be closed out against the positions held in the commodity derivative traded on the other trading venue.

 

 

In the answer to the Question 21 in Questions and Answers on MiFID II and MiFIR market structures topics (ESMA70-872942901-38) updated on 28 March 2018 ESMA explained that in cases where an OTC contract is economically equivalent to more than one ETD contract traded on a trading venue in the EU and where those ETD contracts do not qualify as the same derivative contract in accordance with Article 5(1) of RTS 21, positions in the EEOTC contract can be reported to any of the NCAs of the trading venues where the ETD contract is traded.

ESMA, moreover, underlined that:

- position reporting of such EEOTC contract should not be split among different NCAs and should not be reported to more than one NCA;

- investment firms should ensure that non-reporting or double reporting is avoided and that EEOTC contracts are consistently reported to the same NCA, with a consistent reference to the contract; 

- for aggregation purposes, in order to calculate “net positions” according to Article 57(1) of MIFID II and Article 3 of RTS 21, the EEOTC contract should be considered only once and be aggregated only once with the ETD contract that the investment firm has considered it is equivalent to.

 

UK FCA’s clarifications

 

The UK FCA Q&As made some important comments on the decomposition in MiFID II positions reports of: 

- futures/options,

- indices, and 

- on-venue and economically equivalent OTC (EEOTC) contracts.

According to the UK FCA:

- futures and options should be reported separately which is reflected in the position report field ‘instrument name’,
- FCA is not expecting indices to be decomposed into separate positions,
- the on-venue contract and any economically equivalent contracts are to be reported separately.

The FCA made, moreover, an important remark that the spot/other month categorisation for position reporting is driven by the date of expiry of the position, not the execution date.

 

Standards for the Commitment of Trader (CoT) reports

 

On 3 November 2017 EFET and FIA announced they developed an industry standard to facilitate position reporting under MiFID II. According to the announcement, the EFET-FIA ITS4 schema allows for the provision of the missing static data for position reporting, as well as additional information required by trading venues to complete the Commitment of Trader report.

On 2 October 2018 (Questions and Answers on MiFID II and MiFIR commodity derivatives topics, ESMA70-872942901-36, Question 22) ESMA referred to the issue how to qualify firms into each of the ITS 4 categories for the purposes of the weekly Commitment of Trader (CoT) reports (ITS 4 -  Commission Implementing Regulation (EU) 2017/1093 of 20 June 2017 laying down implementing technical standards with regard to the format of position reports by investment firms and market operators).

Given that the ITS 4 implementing MiFID II provides the format of the weekly CoT report to be published by trading venues and provided to ESMA, members and participants of those venues must use their knowledge and judgment to categorise their activities and the activities of their clients accurately. 

In order to achieve accuracy and consistency in the reporting of positions across different categories, ESMA provided the following guidance:

- Investment firms or credit institutions – includes banks and other firms regulated under MiFID II.
- Investment funds – entities holding investments directly in the commodity derivatives market as a form of collective investment scheme, including hedge, pension and exchange-traded funds.
- Other financial institutions – those financial firms not falling within any of the other categories.
- Commercial undertakings – non-financial entities using commodity derivatives, for example firms using those markets to hedge the risk they directly incur from dealing in physical commodities such as producers, end users, processors, manufacturers, shippers and merchants.
- Operators with compliance obligations under the Emissions Allowance Trading Directive – such as commercial airlines, entities in power and heat generation, energy-intensive industry sectors including oil refineries, steel works, production of iron, aluminium, metals, cement, lime, glass, ceramics, pulp, paper, cardboard, acids and bulk organic chemicals.

It should be noted that it is possible for a firm to be categorised as an operator with compliance obligations under the Emissions Allowance Trading Directive for a Weekly CoT report for an emissions allowance contract or derivatives thereof while, on the other hand, it must be categorised as a commercial undertaking for a Weekly CoT referring to another asset class of commodity derivatives contract (i.e. metals, oil, coal, gas, power, etc.).

ESMA Opinion of 12 July 2022 on classification of counterparties in weekly position reports (ESMA70-156-6046) states that for the purpose of the weekly position reports on commodity derivatives and emission allowances derivatives under MiFID II, third-country financial entities should be categorised according to the nature of their main business in the same way as they would be categorised if they were established in the EU and subject to EU law, i.e. under categories (a), (b) or (c) of Article 58(4) of MiFID II.

 

Reporting positions in emission allowances and derivatives thereof

 

Some important aspects of reporting positions in emission allowances and derivatives thereof have been underlined in the ESMA Final Report of 28 March 2022 (Emission allowances and associated derivatives, ESMA70-445-380).

In the said Report the ESMA observes that whilst the Level 1 text sets out that daily positions in emission allowances, and not only in derivatives on emission allowances, should be reported to the NCA, some other terms used in Article 58(1), such as open position, long and short positions, which typically apply to derivatives rather than spot instruments, appear to have created uncertainty on how positions on spot emission allowances should be reported.

ESMA notes that the daily position reports received from NCAs in the context of this report and the EU carbon market analysis performed did not include any position reports in emission allowances. ESMA also notes that in accordance with the mandate received under Article 57(12) of MiFID II, Article 6 of RTS 21 (and RTS 21a) sets out criteria for determining whether a commodity derivative contract is an economically equivalent OTC contract to that traded on a trading venue for position limit purposes. No such definition is however provided for EEOTC derivatives on emission allowances for position reporting purposes. ESMA is of the view that the position reporting regime set out in MiFID II does not serve its intended purpose when it comes to position reporting in emission allowances.

Position reporting in derivative instruments allows the regulators to monitor the evolution and in particular the build-up of positions over time, and its possible effect on both the derivatives and the underlying spot market. However, the same outcome cannot be reached as regards spot instruments, such as emission allowances, where positions in the contract remain open for a very short period.

A position that reaches maturity is reported by the trading venue to the NCA as “zero”, which means that for emission allowances, the NCA will receive a “zero” report every other day when the transaction is finally settled and the emission allowance is delivered. The same holds true for daily futures. No meaningful information can therefore be drawn from those position reports by the NCA on the number of emission allowances held by market participants for market monitoring purposes. Furthermore, no information is available to the NCA of the spot trading venue on the emission allowances that have been freely allocated, auctioned in the primary market or surrendered. Considering the above, ESMA is of the view that the data already available in the Union Registry, which records the holdings of both financial and non-financial entities would be a more relevant and exhaustive source of information on emission allowance account holders. In parallel, ESMA recommends removing the position reporting in emission allowances and weekly position reporting requirements from MiFID II.

As regards EEOTC derivatives on emission allowances, ESMA stands ready to provide technical assistance to the Commission should the Commission consider that further clarification in Level 2 is needed.

ESMA is of the view that, based on the above amendments, EUA position reports can be a source of useful additional information for NCAs in the exercise of their market monitoring responsibilities and can notably help identifying the potential existence, or building, of large positions in emission allowances by a market participant which may be a source of concern or raise question marks. 

Additional information on the positions held by market participants in emission allowances over time will be of particular relevance considering the limited number of participants in the primary market, noting that the Union registry cannot be relied upon to that end due to the use of omnibus accounts. More generally, ESMA considers that emission allowance position data will contribute to a better understanding of the EU carbon market dynamics and market participants’ trading strategies. Moreover, further clarity on the definition of EEOTC derivatives on emission allowances may contribute to a more comprehensive position reporting of emission allowance derivatives, although ESMA notes that the EEOTC reporting obligation only applies when the position results from a transaction involving an investment firm.

ESMA also observes that weekly position reports on emission allowance derivatives published by trading venues include and combine open positions in futures on emission allowances and options on futures on emission allowances on a delta adjusted basis, even when the option and the future contracts have a different venue product code.

The combination of open positions held in futures on emission allowances and options on emission allowance futures on a delta adjusted basis provides a useful view of the total exposure a category of counterparties may have to emission allowances, however, ESMA notes that in the US, the CFTC requires trading venues trading commodity derivatives to publish two sets of Commitment of Traders (CoT) reports on:
1) combined open positions in futures and options on futures on a delta adjusted basis and
2) open positions in futures only.

ESMA recommends having a similar approach in the EU and requiring trading venues to also publish weekly position reports on open positions in futures on emission allowances only in addition to the current combined report. This would require amending Article 58(1)(a) of MiFID II, Article 83 of Delegated Regulation (EU) 2017/565 and ITS 4. ESMA would also see benefits in extending this increased transparency in weekly position reports to all commodity derivatives.

 


Directive (EU) 2021/338 of the European Parliament and of the Council of 16 February 2021 amending Directive 2014/65/EU as regards information requirements, product governance and position limits, and Directives 2013/36/EU and (EU) 2019/878 as regards their application to investment firms, to help the recovery from the COVID-19 crisis sets out amendments to Article 58 of Directive 2014/65/EU as regards position reporting, Article 1(11)

Article 58 is amended as follows:

(a) in paragraph 1, the following subparagraph is added:
‘Position reporting shall not be applicable to any other securities as referred to in point (c) of point (44) of Article 4(1) that relate to a commodity or an underlying as referred to in Section C.10 of Annex I.’;

(b) paragraph 2 is replaced by the following:
‘2.   Member States shall ensure that investment firms trading in commodity derivatives or emission allowances or derivatives thereof outside a trading venue provide, on at least a daily basis, the central competent authority referred to in Article 57(6) or – where there is no central competent authority – the competent authority of the trading venue where the commodity derivatives or emission allowances or derivatives thereof are traded, with a complete breakdown of their positions taken in economically equivalent OTC contracts and, when relevant, in commodity derivatives or emission allowances or derivatives thereof traded on a trading venue, as well as of those of their clients and the clients of those clients until the end client is reached, in accordance with Article 26 of Regulation (EU) No 600/2014 and, where applicable, of Article 8 of Regulation (EU) No 1227/2011.’


 

 

Article 58 MiFID II

 

Position reporting by categories of position holders

 

1. Member States shall ensure that an investment firm or a market operator operating a trading venue which trades commodity derivatives or emission allowances or derivatives thereof:

 

(a) make public a weekly report with the aggregate positions held by the different categories of persons for the different commodity derivatives or emission allowances or derivatives thereof traded on their trading venue, specifying the number of long and short positions by such categories, changes thereto since the previous report, the percentage of the total open interest represented by each category and the number of persons holding a position in each category in accordance with paragraph 4 and communicate that report to the competent authority and to ESMA; ESMA shall proceed to a centralised publication of the information included in those reports;

 

(b) provide the competent authority with a complete breakdown of the positions held by all persons, including the members or participants and the clients thereof, on that trading venue, at least on a daily basis.

 

The obligation laid down in point (a) shall only apply when both the number of persons and their open positions exceed minimum thresholds.

 

2. Member States shall ensure that investment firms trading in commodity derivatives or emission allowances or derivatives thereof outside a trading venue provide the competent authority of the trading venue where the commodity derivatives or emission allowances or derivatives thereof are traded or the central competent authority where the commodity derivatives or emission allowances or derivatives thereof are traded in significant volumes on trading venues in more than one jurisdiction at least on a daily basis with a complete breakdown of their positions taken in commodity derivatives or emission allowances or derivatives thereof traded on a trading venue and economically equivalent OTC contracts, as well as of those of their clients and the clients of those clients until the end client is reached, in accordance with Article 26 of Regulation (EU) No 600/2014 and, where applicable, of Article 8 of Regulation (EU) No 1227/2011.

 

3. In order to enable monitoring of compliance with Article 57(1), Member States shall require members or participants of regulated markets, MTFs and clients of OTFs to report to the investment firm or market operator operating that trading venue the details of their own positions held through contracts traded on that trading venue at least on a daily basis, as well as those of their clients and the clients of those clients until the end client is reached.

 

4. Persons holding positions in a commodity derivative or emission allowance or derivative thereof shall be classified by the investment firm or market operator operating that trading venue according to the nature of their main business, taking account of any applicable authorisation, as either:

 

(a) investment firms or credit institutions;

 

(b) investment funds, either an undertaking for collective investments in transferable securities (UCITS) as defined in Directive 2009/65/EC, or an alternative investment fund manager as defined in Directive 2011/61/EC;

 

(c) other financial institutions, including insurance undertakings and reinsurance undertakings as defined in Directive 2009/138/EC, and institutions for occupational retirement provision as defined in Directive 2003/41/EC;

 

(d) commercial undertakings;

 

(e) in the case of emission allowances or derivatives thereof, operators with compliance obligations under Directive 2003/87/EC.

 

The reports referred to in point (a) of paragraph 1 shall specify the number of long and short positions by category of persons, any changes thereto since the previous report, percent of total open interest represented by each category, and the number of persons in each category.

 

The reports referred to in point (a) of paragraph 1 and the breakdowns referred to in paragraph 2 shall differentiate between:

 

(a) positions identified as positions which in an objectively measurable way reduce risks directly relating to commercial activities; and

 

(b) other positions.

 

5. ESMA shall develop draft implementing technical standards to determine the format of the reports referred to in point (a) of paragraph 1 and of the breakdowns referred to in paragraph 2.

 

ESMA shall submit those draft implementing technical standards to the Commission by 3 January 2016.

 

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

 

In the case of emission allowances or derivatives thereof, the reporting shall not prejudice the compliance obligations under Directive 2003/87/EC.

 

6. The Commission shall be empowered to adopt delegated acts in accordance with Article 89 to specify the thresholds referred to in the second subparagraph of paragraph 1 of this Article, having regard to the total number of open positions and their size and the total number of persons holding a position.

 

7. ESMA shall develop draft implementing technical standards to specify the measures to require all reports referred to in point (a) of paragraph 1 to be sent to ESMA at a specified weekly time, for their centralised publication by the latter.

 

ESMA shall submit those draft implementing technical standards to the Commission by 3 January 2016.

 

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

 

 

 

 

Questions and Answers, on MiFID II and MiFIR commodity derivatives topics, ESMA70-872942901-28

 

Position reporting

 

Question 1 [Last update: 07/07/2017]


Do positions held by an investment firm on behalf of their clients add to the investment firm’s own positions?

Answer 1


Article 57(1) explicitly introduces the possibility that positions are held on behalf of another entity for legal or operational reasons. In order to avoid double counting, such positions are only to be reported as the positions of the person on whose behalf they are held. They are not to be added to or netted against other positions held by the investment firm.

 

Question 2 [Last update: 07/07/2017]


How should investment firms report the positions in commodity derivatives of persons who receive investment or ancillary services from a non-investment firm that is an “end client” of the investment firm?


Answer 2


As position limits apply to “persons”, all positions in commodity derivatives must be included in position reporting. Where an investment firm is reporting the positions of an end client that is not an investment firm and does not therefore have reporting obligations of its own under MIFID II, its report should cover both the end-client’s own account positions and any positions that the end-client holds on behalf of third parties.


Investment firms reporting such positions will reduce the risk of their reports erroneously identifying a breach of the position limit by the end-client by reporting the position of the end client separately from positions held by that end-client on behalf of third parties.


Further, by reporting the positions held by the end-client on behalf of third party entities on an entity-by-entity basis the investment firm will further reduce the risks of its reports erroneously identifying positions which appear to give rise to breaches because they aggregate across unaffiliated entities.


Entity-by-entity reporting is therefore encouraged, though ESMA recognises that the investment firm may not be able to disaggregate end-client’s positions, and there is no obligation on non-investment firms to provide disaggregated positions.
Every person holding a position in commodity derivative is subject to the position limits even if their positions are aggregated in the reporting process.


Question 3 [Last update: 07/07/2017]


 

Who should submit position reports under Article 58(2) of MiFID II?

 

Answer 3


Only investment firms trading in commodity derivatives or emission allowances or derivatives thereof outside a trading venue (economically equivalent OTC contracts) should submit position reports under Article 58(2) of MiFID II.


Question 4 [Last update: 07/07/2017]


  

Should investment firms include positions traded on a trading venue and economically equivalent OTC contracts in position reports under Article 58(2) of MiFID II?


Answer 4


Investment firms should only include economically equivalent OTC contracts in position reports under Article 58(2) MiFID II, as positions traded on trading venues are already reported under Article 58(1)(b) MiFID II.


Question 5 [Last update: 07/07/2017]


Does the requirement for trading venues to make public weekly aggregate position reports and to communicate that report to the competent authority and to ESMA apply to securitised derivatives?


Answer 5


The weekly aggregate position reports to be published by trading venues under Article 58(1)(a) of MiFID II aim at providing transparency to investors about the view of the market that certain categories of traders may be taking. As an example, if non-commercial traders are predominantly long in grain futures, this would be indicative of a view among professional investors that grain prices are going to go up.


Providing this type of transparency to investors appears useful and meaningful with regards to contracts for instance with large open interest that serve as a reference or benchmark for market participants.


In contrast, trading in European securitised derivatives is fragmented with well over 10,000 instruments in issue and liquidity per contract is often low. The potential publication of a multitude of weekly reports in securitised commodity derivatives on a per security level when position holder thresholds are exceeded would send out a confusing picture to investors rather than serve the envisaged purpose of market-wide transparency.


ESMA also notes that under Article 83 of [draft Commission Delegated Act of 25 April 2016], the obligation for a trading venue to make public weekly aggregate position reports applies “when both of the following two thresholds are met:

 

- 20 open position holders exist in a given contract on a given trading venue; and


- the absolute amount of the gross long or short volume of total open interest, ex-pressed in the number of lots of the relevant commodity derivative, exceeds a level of four times the deliverable supply in the same commodity derivative, expressed in number of lots.


Where the commodity derivative does not have a physically deliverable underlying asset and for emission allowances and derivatives thereof, point (b) shall not apply.”


While the condition of 20 position holders could be applied to securitised derivatives, the terminology of condition (b) referring to long or short volumes of open interest expressed in lots appears to be geared solely towards the contracts described in MiFID II, Annex I, Section C (5), (6), (7) and (10).


Based on the above, ESMA is of the view that Article 58(1)(a) of MiFID II and the Commission Delegated Regulation (EU) 2017/565 dealing with weekly position reports does not apply to securitised derivatives.


Question 6 [Last update: 07/07/2017]


 

At what level should Asset Managers aggregate positions? Is this to be done at group level or a lower level (e.g. fund/legal entity identifier etc.)?


Answer 6


Under Article 4 (2) of RTS 21, as an exception to the general rule on calculating positions for legal entities within a group, the parent undertaking of a collective investment undertaking (CIU), or of the management company of a collective investment scheme, should not aggregate the positions in commodity derivatives in any collective investment undertaking where it does not in any way influence the investment decisions in respect of opening, holding or closing those positions. In that case, positions are to be reported at CIU/LEI level. Alternatively, if the parent undertaking influences investment decisions by the collective investment undertaking or by the management company of a collective investment undertaking, it should aggregate the positions held in the relevant collective investment scheme(s).


The parent undertaking has to conduct a self-assessment exercise to determine whether it exercises any influence on investment decisions by the collective investment undertaking or by the management company of a collective investment undertaking, taking into account any relevant circumstances governing the relationship between the parent undertaking and the CIU or its management company.


Upon request, the parent undertaking should be in a position to explain to the relevant competent authority why it deems it does not exercise any influence on the decisions of the CIU or its management company.


Question 7 [Last update: 07/07/2017]


Which MIC should be used by trading venues for position reporting?


Answer 7


Venues should use the relevant ‘segment MIC’ under which a commodity derivative is traded. If a venue does not have a segment MIC, it should use its ‘operating MIC’.


Question 8 [Last update: 07/07/2017]


By when do positions have to be reported under Articles 58(1)(b) and 58(2) of MIFID II?


Answer 8


Trading venues and investment firms should report their positions to the respective NCA by 22:00 CET on T+1.


Question 9 [Last update: 07/07/2017]


Does the requirement under Article 58(1)(b) and (2) of MiFID II to submit daily position reports to the NCA apply to securitised derivatives with a total number of securities in issue not exceeding 2.5 million?


Answer 9


No. The NCAs do not need to require the submission of daily position reports of securitised derivatives with a total number of securities in issue not exceeding 2.5 million. The purpose of daily reporting is to monitor for potential breaches of position limits. To that end, Article 58(3) of MiFID II stipulates that daily position reporting shall enable monitoring of compliance with Article 57(1) of MiFID II. Accordingly, the reporting requirement has been set for situations in which reporting is necessary to enable monitoring. As a consequence, NCAs do not need to require daily reporting if the possibility of a breach of position limits can be ruled out from the outset.


These instruments would be illiquid contracts and benefit from the derogation pursuant to Article 15(1)(c) of RTS 21 with regard to regulatory technical standards for the application of position limits to commodity derivatives. For issues not exceeding 2.5 million securities it is per se not possible to breach position limits.


Trading venues that would otherwise be required to submit position reports of these securitised derivatives must confirm to the NCA that the total number of securities in issue does not exceed the 2.5 million threshold. The NCA assesses whether this condition is fulfilled. The reporting entity can rely on information provided by the CSD, the issuer, or another reliable source that ensures up-to-date knowledge on the current number of securities in issue. As soon as the threshold is exceeded, position reporting must be performed.


Question 10 [Last update: 07/07/2017]


How does ESMA propose to address the breaches of applicable non-EU laws and regulations regarding data protection and bank secrecy which may potentially arise from the reporting of client and end client positions?


Answer 10


Article 58(2) of MiFID II requires investment firms trading in commodity derivatives to provide to the relevant competent authority a complete breakdown of their positions as well as those of their clients and the clients of those clients until the end-client is reached. ITS 4 provides a template for such reporting. Position holders are to be identified in the same way as for transaction reporting purposes. Legal persons are identified by their LEI. For non-EU position holders that are natural persons, the identifier with the highest priority is the passport number, the second priority being a unique CONCAT code combining nationality, first name and surname of the position holder.


The requirement to identify clients and clients of clients until the end client in position reports cannot be waived. Therefore, where an investment firm would be dealing with or on behalf of clients or clients of clients that cannot be identified in position reporting because of legal, regulatory or contractual impediments, that investment firm would not be deemed compliant with its obligations under Article 58(2) of MiFID II.

 

Question 11 [Last update: 13/11/2017]

 

Where an NFE trades only, or partly, for hedging purposes, can every transaction be reported as being for speculative purposes?

 

Answer 11

 

No. NFEs should ensure that their position reports accurately describe their position. This is necessary to ensure the reliability and accuracy of the position reports submitted to NCAs and the published weekly position reports. Accordingly, NFEs are expected to correctly flag positions as hedging (or speculative) based on the conditions established in Article 7 of RTS 21. In particular, the reports should accurately describe whether the position is risk reducing in relation to the NFE’s commercial activities. This is the case even if the NFE does not apply for a hedging exemption under Article 8 of RTS 21 (in accordance with Q&A 14 on position limits) because it does not expect its aggregated positions resulting from hedging and non-hedging activities to exceed the limit set by the relevant NCA for that commodity derivative contract.

 

Question 12 [Last update: 13/11/2017]

 

Should an investment firm acting as broker and using a matched principal model be subject to position reporting?

 

Answer 12

 

Yes. Any investment firm trading in commodity derivatives contracts traded on a trading venue or in EEOTC contracts is subject to position reporting and should provide a complete breakdown of positions held on own account and on behalf of clients as the investment firm can end up holding a position even if trading on a matched principal basis. It is the investment firm’s responsibility to assess whether the transaction executed results in a change in the positions held on own account and/or on behalf of clients.

 

Question 13 [Last update: 13/11/2017]

 

Do end-of-day zero positions need to be reported?

 

Answer 13

 

Article 58(2) of MiFID II provides for the reporting, at least on a daily basis, of a complete breakdown of the positions. End of day zero positions do not need to be reported to the NCA unless the firm showed a positive or negative position in the previous report. In that case, the first time the open position is reduced to zero, a zero position should be reported to the NCA.

 

Question 14 [Last update: 13/11/2017]

 

Can position reporting pursuant to Article 58(2) be outsourced to another entity?

 

Answer 14

 

Yes. Investment firms can delegate the reporting to third parties but shall remain responsible for the reports. The investment firm has to comply with the relevant outsourcing requirements specified in MiFID II.

 

Question 15 [Last update: 13/11/2017]

 

Do positions in C(10) instruments with an underlying which is not a commodity as defined in Article 2(6) of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 need to be reported?

 

Answer 15

 

The various commodity derivative underlyings within the scope of the C(10) category shall be treated consistently across all provisions concerning commodity derivatives in the MiFID II/MiFIR framework. The purpose of daily reporting is to monitor for potential breaches of position limits as Article 58(3) of MiFID II stipulates that daily position reporting shall enable monitoring of compliance with Article 57(1) of MiFID II. Therefore, all those commodity derivatives contracts with underlyings that are subject to the position limit regime as specified in Position Limits Question 10 and Ancillary Activity Question 11 are also subject to position reporting.

 

Question 16 [Last update: 13/11/2017]

 

In respect of which contracts does ESMA expect to receive weekly reporting data from trading venues under Article 58(7) of MiFID II in conjunction with ITS 4 and 5?

 

Answer 16

 

Submission of weekly reports to ESMA should be strictly limited to those contracts that fulfil the conditions specified in Article 83 of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016. This is to ensure that ESMA only publishes those reports it is authorised to publish and that the ESMA publications give a consistent picture to stakeholders. Trading venues can publish on their own webpages information in respect of additional contracts.

 

Question 17 [Last update: 15/12/2017]

 

Where there is a chain of investment firms reporting obligations, who has to report to the trading venue or NCA?

 

Answer 17

 

Where there is a chain of investment firms that are executing trades on behalf of their clients, each one of them has an obligation to report a complete breakdown of the positions held by all persons down the chain, down to the end client, as defined under Article 58(3) of MIFID II.

 

At the same time, duplicative reporting should be avoided. Unless firms make arrangements to avoid it, this may arise, for example, where two or more of the investment firms in the chain are members of a trading venue, and therefore have an obligation (under Article 58(3)) to report to the trading venue.

 

To this aim, there is a possibility to outsource reporting, for example, an arrangement in which the first investment firm in a chain will agree with the second that it will report to the trading venue. The firm which outsources the reporting should make sure that all the necessary and factual information is provided to the reporting agent, as the responsibility for reporting cannot be outsourced.

 

Question 18 [Last update: 15/12/2017]

 

How should clients of investment firms inform their intermediaries of the nature of each of their positions (hedge or speculation)? Should that information be provided for each position or could clients indicate to their intermediaries that, except if they explain otherwise, all their positions should be deemed for hedging or non-hedging purposes?

 

Answer 18

 

The obligation to report positions under Article 58 of MIFID rests with members or participants of regulated markets, MTFs and clients of OTFs or with investment firms when executing EEOTC transactions on behalf of their clients.

 

It is the client’s responsibility to ensure that their position is accurately described in their position report, in particular regarding whether their positions are for hedging or speculative purposes. It is a matter for the individual client as to how they satisfy this obligation and they may provide an initial instruction that unless informed otherwise, the investment firm should report certain defined positions to be for hedging (or speculative) purposes providing that this is an accurate description at the time. There may, however, be circumstances where a client is able more accurately to assign new transactions to hedging or speculative positions only after the initial trade. In this case the client should ensure that their position report is adjusted accordingly to the hedging or non-hedging nature of their position. Some clients may find it useful to adopt the ITS 4 template for reporting to investment firms.

 

Question 19 [Last update: 15/12/2017]

 

How is the position quantity field reported for contracts that relate to delivery of the same underlying over different periods of time?

 

Answer 19

 

The Position Quantity held in a contract must be reported in the same unit as used by the Competent Authority to set the position limit for that contract. The position limits for those contracts that refer to the same underlying commodity but have a variety of delivery periods, e.g. annual (calendar), quarterly, monthly, weekly (whole week, working day week and weekend) or daily are set in units of underlying since a lot does not represent a standard quantity of underlying across all maturities/delivery periods. Thus, for these contracts, the figures reported in the field position quantity must be expressed in units of underlying.

 

Question 20 [Last update: 15/12/2017]

 

How should the position in the spot month and other months be reported for contracts where there are daily or weekly as well as monthly contracts?

 

Answer 20

 

Positions in daily or weekly contracts whose delivery period is completely included in the spot month should be reported as spot month positions ('SPOT').

 

Positions in weekly contracts whose delivery period is not completely included in the spot month, i.e. weekly contracts that straddle the spot month and other months, should be reported as other months’ positions ('OTHR').

 

Positions in quarterly or annual contracts whose delivery period straddles the spot month and other months should also be reported as other months’ positions ('OTHR').

 

Question 21 [Last update: 27/03/2018]


In cases where an OTC contract is economically equivalent to more than one ETD contract traded on an EU trading venue and where those ETD contracts are not the same derivative contract, to which NCA should the reporting of the EEOTC contracts be addressed?


Answer 21


In cases where an OTC contract is economically equivalent to more than one ETD contract traded on a trading venue in the EU and where those ETD contracts do not qualify as the same derivative contract in accordance with Article 5(1) of RTS 21, positions in the EEOTC contract can be reported to any of the NCAs of the trading venues where the ETD contract is traded.


Position reporting of such EEOTC contract should not be split among different NCAs and should not be reported to more than one NCA. Investment firms should ensure that non-reporting or double reporting is avoided and that EEOTC contracts are consistently reported to the same NCA, with a consistent reference to the contract.


For aggregation purposes, in order to calculate “net positions” according to Article 57(1) of MIFID II and Article 3 of RTS 21, the EEOTC contract should be considered only once and be aggregated only once with the ETD contract that the investment firm has considered it is equivalent to.

 

Question 22 [Last update: 02/10/2018]

 

Which types of firm fall within each of the ITS 4 categories for the purposes of the weekly Commitment of Trader (CoT) reports?

 

Answer 22

 

ITS 4 implementing MiFID II provides the format of the weekly CoT report to be published by trading venues and provided to ESMA. In providing information to the trading venues to enable them to produce the CoT report, members and participants of those venues must use their knowledge and judgment to categorise their activities and the activities of their clients accurately.

 

In order to achieve accuracy and consistency in the reporting of positions across different categories, the following guidance may be of assistance:

- Investment firms or credit institutions – includes banks and other firms regulated under MiFID II.

- Investment funds – entities holding investments directly in the commodity derivatives market as a form of collective investment scheme, including hedge, pension and exchange-traded funds.

- Other financial institutions – those financial firms not falling within any of the other categories.
- Commercial undertakings – non-financial entities using commodity derivatives, for example firms using those markets to hedge the risk they directly incur from dealing in physical commodities such as producers, end users, processors, manufacturers, shippers and merchants.
- Operators with compliance obligations under the Emissions Allowance Trading Directive – such as commercial airlines, entities in power and heat generation, energy-intensive industry sectors including oil refineries, steel works, production of iron, aluminium, metals, cement, lime, glass, ceramics, pulp, paper, cardboard, acids and bulk organic chemicals.


It should be noted that it is possible for a firm to be categorised as an operator with compliance obligations under the Emissions Allowance Trading Directive for a Weekly CoT report for an emissions allowance contract or derivatives thereof while, on the other hand, it must be categorised as a commercial undertaking for a Weekly CoT referring to another asset class of commodity derivatives contract (i.e. metals, oil, coal, gas, power, etc.).

 

 

 

 

Questions and Answers, on MiFID II and MiFIR commodity derivatives topics, 31 May 2017, ESMA70-872942901-28

 

Third country issues [Last update: 31/05/2017]

 

Question 1 [Last update: 31/05/2017]


Should economically equivalent contracts traded on a third-country venue be considered EEOTC for position limit and position reporting purposes under MiFID II?

 

Answer 1


Whether or not positions held in commodity derivatives contracts traded on third-country venues that are economically equivalent (EE) to contracts traded on an EU trading venue, are to be considered as EETOC for position limit and position reporting purposes under Article 58(2) of MiFID II depends on the characteristics of that third-country trading venue, as set out in ESMA Opinion 70-154-165 of 31 May 2017.

 

Market participants holding positions on third country venue contracts, that may be considered EEOTC under Article 58(2) of MiFID II and Article 6 of Commission Delegated Regulation (EU) 2017/591 of 1 December 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council with regard to regulatory technical standards for the application of position limits to commodity derivatives (RTS 21), or considering trading such contracts, should contact their CA and make them aware of those contracts. The CA will then get in touch with the third-country venue with a request for further information. Based on the information provided, ESMA will determine whether the third-country trading venue meets the criteria set out in the ESMA Opinion. If so, the respective third-country venue will be listed in an Annex to the Opinion.


Where a third-country trading venue appears in the annex to the Opinion, EE contracts traded on that venue will not be considered EEOTC for position limit and position reporting purposes. EE contracts traded on any other third-country trading venue that does not appear in the Annex to the Opinion will be considered EEOTC.


ESMA is aware that it is important for market participants to have legal certainty as soon as possible on the treatment of their transactions in EE contracts on third-country trading venues for position limit and reporting purposes. Whilst ESMA cannot commit to any set timeline for the assessment of the information received through NCAs, all notifications will be processed as expediently as possible.

 

 

 

 

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