(fra kommisjonsforordningen)

(1) Regulation (EU) 2024/791 of the European Parliament and the Council10 amended Article 2(1), point (17)(b), of Regulation (EU) No 600/2014 on the criteria to determine what constitutes a ‘liquid market’ for the purposes of Articles 4, 5 and 14 of the latter Regulation by replacing the ‘free float’ criterion by the ‘market capitalisation’ criterion. To reflect that amendment, it is therefore necessary to amend the corresponding provisions of Commission Delegated Regulation (EU) 2017/56711 . When doing so, it is important to ensure consistency with the results of the liquidity assessment in terms of number of liquid shares, percentage of turnover in liquid shares, and the number of transactions in liquid shares obtained so far by applying the free float criterion. The determination of what constitutes a ‘liquid market’ for shares for the purposes of Articles 4, 5 and 14 of Regulation (EU) No 600/2014 should therefore rely on a market capitalisation threshold of EUR 100 million. To ensure consistency with the methodology so far applied for calculating the free float for shares that are only traded on a multilateral trading facility, the market capitalisation of a share should be calculated by multiplying the number of outstanding shares by the price per share. Given that for depository receipts, exchange traded funds (‘ETFs’) and certificates the methodology set out in Delegated Regulation (EU) 2017/567 for calculating the free float is already aligned to the methodology for calculating the market capitalisation, the thresholds for determining liquid markets for those financial instruments should remain unchanged, while the references to ‘free float’ should be replaced by references to ‘market capitalisation’. 

(2) Article 5(1), first subparagraph, points (b) and (c), of Delegated Regulation (EU) 2017/567 require that, for the purposes of the liquidity assessment for equity instruments, the average daily turnover (‘ADT’) and the average daily number of transactions (‘ADNTE’) are calculated by using the total turnover executed in the Union and the total number of transactions executed in the Union, respectively. That means that, for the calculation of the ADT and the ADNTE, the numerator includes transactions in a financial instrument executed both on a trading venue and outside of a trading venue. Article 5 of Delegated Regulation (EU) 2017/567, however, does not specify how to determine the denominator. It is necessary to provide legal clarity and to ensure consistency with the methodology laid down in Article 7(10) of Commission Delegated Regulation (EU) 2017/58712 for determining the post-trade large-in-scale threshold. It is therefore necessary to specify that, when calculating the ADT and the ADNTE, the denominator should be the number of days on which the financial instrument was available for trading on the most relevant market in terms of liquidity, as referred to in Article 4 of Delegated Regulation (EU) 2017/587, and on which that market was open. The same approach should also apply for determining the denominator for assessing whether a financial instrument is traded daily. 

(3) Delegated Regulation (EU) 2017/567 does not contain any parameters to determine what constitutes a ‘liquid market’ for the purposes of Articles 4, 5, and 14 of Regulation (EU) No 600/2014 for financial instruments similar to shares, depositary receipts, ETFs, or certificates (‘other similar financial instruments’). To ensure legal clarity, it is necessary to specify that other similar financial instruments should be deemed to be illiquid over their entire trading life. 

(4) Article 13(2), and Article 15(5) of Regulation (EU) No 600/2014 empowered the Commission to adopt delegated acts clarifying what constitutes a reasonable commercial basis to make information public pursuant to Article 13(1) and Article 15(1), respectively, which the Commission did in Chapter II of Delegated Regulation (EU) 2017/567. Article 1, point (12), of Regulation (EU) 2024/791 introduced into Regulation (EU) No 600/2014 a new Article 13. That new Article 13 requires market operators and investment firms operating a trading venue, approved publication arrangements (‘APAs’), consolidated tape providers and systematic internalisers to make available to the public the information published in accordance with Articles 3, 4, 6 to 11a, 14, 20, 21, 27g and 27h of Regulation (EU) No 600/2014 on a ‘reasonable commercial basis’. That new Article 13 also empowers ESMA and the Commission to further specify what constitutes ‘a reasonable commercial basis’. The Commission used that empowerment to adopt Commission Delegated Regulation (EU) 2025/115613. It follows that Chapter II of Delegated Regulation (EU) 2017/567 should be deleted. 

(5) Regulation (EU) 2024/791 amended Regulation (EU) No 600/2014 by deleting Articles 18 and 19 of that Regulation, which contained pre-trade transparency requirements for systematic internalisers in respect of non-equity instruments when providing firm or indicative quotes to their clients. As a consequence, Regulation (EU) 2024/791 also deleted the obligation for systematic internalisers, laid down in Article 18(6) of Regulation (EU) No 600/2014, to undertake to enter into transactions in nonequity instruments under the published conditions with any client to whom the quote is made available when the quoted size is at or below the size specific to the financial instrument. It follows that Article 16 of Delegated Regulation (EU) 2017/567, which specifies the size specific to the financial instrument for the purposes of the requirements applicable to systematic internalisers in respect of non-equity instruments, should be deleted. 

(6) Regulation (EU) 2024/791 amended Article 31 of Regulation (EU) No 600/2014 by expanding, beyond portfolio compression services, the scope of post-trade risk reduction (‘PTRR’) services that form and establish transactions in OTC derivatives, which are exempt from requirements of pre- and post-trade transparency, the trading obligation and requirements of best execution. Regulation (EU) 2024/791 empowered the Commission to specify what constitutes PTRR services for the purposes of Article 31(1) of Regulation (EU) No 600/2014 and the transactions to be recorded by PTRR services providers pursuant to Article 31(4) of the latter Regulation. In order for transactions in OTC derivatives to be exempt from requirements of pre- and post-trade transparency, the trading obligation and requirements of best execution, PTRR services that form and establish those transactions should comply with a number of conditions. They should be provided by a third-party service provider on the basis of non-discretionary rules that are set in advance; the participants in the PTRR exercise should not be able to choose which trades to execute; PTRR services should have the purpose of achieving a reduction of risk in each of the portfolios submitted to the PTRR exercise by the counterparties to the derivative transaction or by an agent acting on their behalf; they should be market-risk neutral; and transactions resulting from the PTRR exercise should not contribute to price formation. Limited risk tolerances can be set by the counterparties to the derivative transaction, provided that market risk neutrality is overall ensured. To ensure legal clarity, Delegated Regulation (EU) 2017/567 should be amended to specify that, for the purposes of Article 31(1) of Regulation (EU) No 600/2014, PTRR services include compression, rebalancing and basis risk optimisation. 

(7) Regulation (EU) 2024/791 amended Article 31 of Regulation (EU) No 600/2014 by deleting the obligation for investment firms and market operators providing portfolio compression to make public through APA the volumes of transactions subject to portfolio compressions and the time they were concluded. It follows that Article 18 of Delegated Regulation (EU) 2017/567, which specifies publication requirements for portfolio compression, should be deleted. 

(8) Delegated Regulation (EU) 2017/567 should therefore be amended accordingly. 

(9) For market operators and investment firms operating a trading venue, APAs and systematic internalisers which are authorised before 23 November 2025, Delegated Regulation (EU) 2025/1156 will apply from 23 August 2026. Therefore, Chapter II of Delegated Regulation (EU) 2017/567 should be deleted with effect from 23 August 2026,