(fra kommisjonsforordningen)

(1) Regulation (EU) No 2016/1033 of the European Parliament and of the Council amended Regulation (EU) No 600/2014 by introducing into Article 2 of that Regulation a definition of ‘package transactions’. Since delegated regulations should not contain definitions that are already laid down in legislative acts, it follows that the same definition of ‘package transactions’, as currently laid down in Article 1, point (1) of Commission Delegated Regulation (EU) 2017/58312, should be removed from that Regulation. 

(2) Regulation (EU) 2024/791 of the European Parliament and of the Council amended Regulation (EU) No 600/2014 by limiting the requirement to publish firm or indicative quotes in respect of non-equity instruments to central limit order books and periodic auction trading systems. In consequence, Regulation (EU) 2024/791 also deleted Article 9(5), point (d), of Regulation (EU) No 600/2014, which empowered the Commission, inter alia, to lay down a definition of ‘request-for-quote’ and ‘voice trading systems’ for the purposes of waiving pre-trade disclosure. It follows that those definitions should be removed from Article 1 of Delegated Regulation (EU) 2017/583. It is also necessary to delete quote-driven, request-for-quote and voice trading systems from Annex I to Delegated Regulation (EU) 2017/583. 

(3) Regulation (EU) 2024/791 amended Regulation (EU) No 600/2014 by inserting into Article 9(5) of that Regulation a new point (f). Pursuant to that provision, the Commission is empowered to specify the characteristics of ‘central limit order books’ (‘CLOBs’) and ‘periodic auction trading systems’. It is therefore necessary to introduce definitions to that effect into Delegated Regulation (EU) 2017/583. A trading system operated by means of an order book that only includes market maker quotes, and a trading algorithm that matches incoming buy and sell orders with resting market maker quotes without human intervention on the basis of the best available price on a continuous basis should be considered as a continuous order book trading system. A trading system operated by means of an order book, where the quotes of the liquidity providers are confirmed before the potential execution of an incoming order, and a trading algorithm that matches incoming buy and sell orders with the confirmed quotes of the liquidity providers without human intervention on the basis of the best available price on a continuous basis, should also be considered as a continuous order book trading system. Where a CLOB trading system combines elements of a continuous order book trading system and of a periodic auction trading system, the continuous order book component and the periodic auction component of the CLOB trading system should be subject to the information requirements set out in Annex I to Delegated Regulation (EU) 2017/583 for continuous order book trading systems and periodic auction trading systems respectively. 

(4) Article 54(3) of Regulation (EU) No 600/2014 stipulates that the provisions of the delegated acts adopted pursuant to that Regulation as applicable before 28 March 2024 are to continue to apply until the date of application of the delegated acts adopted pursuant to that Regulation as applicable from 28 March. In the Commission notice on the interpretation and implementation of the transitional provision laid down in Regulation (EU) 2024/791, the Commission clarified that Article 54(3) of Regulation (EU) No 600/2014 aims to ensure continuity for market participants while the new Commission delegated regulations are being prepared. To ensure such continuity in practice, a new Article 1a should be introduced into Delegated Regulation (EU) 2017/583 to specify which Articles of that Delegated Regulation should continue to apply only in respect of derivatives. Those Articles should continue to apply together with the provisions in Regulation (EU) No 600/2014 that they supplement, as applicable before 28 March 2024. Therefore, it should also be clarified that references to Article 11 of Regulation (EU) No 600/2014 contained in those Articles should be construed as references to Article 11 of Regulation (EU) No 600/2014, as applicable before 28 March 2024. 

(5) Pursuant to Article 9(5), point (c), of Regulation (EU) No 600/2014, the Commission is empowered to specify the size of orders that are large in scale compared with normal market size. Article 9(1), point (a), of that Regulation enables competent authorities to waive for such orders the obligation for market operators and investment firms operating a trading venue to make public the information referred to in Article 8(1) of that Regulation. The Commission specified the size of orders that are large in scale in Article 3 of Delegated Regulation (EU) 2017/583. Regulation (EU) 2024/791, however, amended Article 8 of Regulation (EU) No 600/2014 to provide for specific pre-trade transparency requirements for trading venues in respect of bonds, structured finance products and emission allowances, and introduced a new Article 8a into that Regulation to provide for specific pre-trade transparency requirements for trading venues in respect of derivatives. It follows from that amendment that the determination of whether an order is large in scale, as referred to in Article 9(1), point (a), of Regulation (EU) No 600/2014, will be different for, on the one hand, bonds, structured finance products and emission allowances, and, on the other hand, derivatives. A new Article 3a should therefore be introduced into Delegated Regulation (EU) 2017/583 to provide for specific rules on the determination of ‘orders which are large in scale’ for bonds, structured finance products and emission allowances. To achieve a more stable pre-trade transparency regime, those rules should rely on a static determination of ‘orders which are large in scale’. 

(6) To accommodate for limiting the pre-trade transparency in respect of non-equity instruments to CLOBs and periodic auction trading systems, Regulation (EU) 2024/791 deleted from Regulation (EU) No 600/2014 Article 9(1), point (b). That point enabled competent authorities to waive the obligation for market operators and investment firms operating a trading venue to make public the information referred to in Article 8(1) of that Regulation for actionable indications of interest in request-forquote and voice trading systems that are above a size specific to the financial instrument. Pursuant to Article 9(5), point (d), of Regulation (EU) No 600/2014, the Commission was empowered to specify the size specific to those financial instruments for which pre-trade disclosure may be waived, which the Commission did in Article 5 of Delegated Regulation (EU) 2017/583. Since Regulation (EU) 2024/791 deleted from Regulation (EU) No 600/2014 both Article 9(1), point (b), and the empowerment laid down in Article 9(5), point (d), it follows that Article 5 of Delegated Regulation (EU) 2017/583 should also be deleted. It is also necessary to delete all references to Article 5 of Delegated Regulation (EU) 2017/583 from other provisions of that Regulation. 

(7) Pursuant to Article 9(5), point (e), of Regulation (EU) No 600/2014, the Commission is empowered to specify the financial instruments or the classes of financial instruments for which there is not a liquid market where pre-trade disclosure may be waived under Article 9(1) of that Regulation. Article 9(1), point (c), of that Regulation enables competent authorities to waive for such instruments or classes of financial instruments the obligation for market operators and investment firms operating a trading venue to make public the information referred to in Article 8(1) of that Regulation. The Commission specified the classes of financial instruments for which there is not a liquid market in Article 6 of Delegated Regulation (EU) 2017/583. Regulation (EU) 2024/791, however, amended Article 8 of Regulation (EU) No 600/2014 to provide for specific pre-trade transparency requirements for trading venues in respect of bonds, structured finance products and emission allowances, and introduced a new Article 8a into that Regulation to provide for specific pre-trade transparency requirements for trading venues in respect of derivatives. It follows from those amendments that the determination of whether there is a liquid market, as referred to in Article 9(1), point (c), of Regulation (EU) No 600/2014, will be different for, on the one hand, bonds, structured finance products and emission allowances, and, on the other hand, derivatives. A new Article 6a should therefore be introduced into Delegated Regulation (EU) 2017/583 to provide for specific rules on the determination of whether there is a ‘liquid market’ for bonds, structured finance products and emission allowances. To achieve a more stable transparency regime, those rules should rely on a static determination of liquidity. 

(8) Regulation (EU) 2024/791 introduced into Article 2(1), point (16a), of Regulation (EU) No 600/2014 the definition of a “designated publishing entity”, and inserted into that Regulation a new Article 21a, which allows an investment firm that is a designated publishing entity to be responsible for making a transaction public through an approved publication arrangement (‘APA’). That same new Article 21a also specifies which party to a transaction should be responsible for making a transaction public where one, neither or both of the parties involved are designated publishing entities. It follows that the requirements laid down in Delegated Regulation (EU) 2017/583 that aim to identify the investment firm responsible for making a transaction public through an APA should be deleted. 

(9) Article 11 of Regulation (EU) No 600/2014 enabled competent authorities to authorise market operators and investment firms operating a trading venue to provide for deferred publication of the details of transactions based on the size of the transaction or the type of transaction. Pursuant to Article 11(4), point (c), of that Regulation, the Commission was empowered to specify the conditions for such deferred publication, which the Commission did in Article 8 of Delegated Regulation (EU) 2017/583. Regulation (EU) 2024/791, however, amended Article 11 of Regulation (EU) No 600/2014 by providing for specific requirements on deferred publication in respect of bonds, structured finance products, and emission allowances, and introduced a new Article 11a in that Regulation containing specific requirements on deferred publication in respect of derivatives. A new Article 8a should therefore be introduced into Delegated Regulation (EU) 2017/583 to determine the exact details of the regime on deferred publication in respect of bonds, structured finance products, and emission allowances, including the determination of which issuance sizes correspond to a liquid or illiquid market in a given financial instrument, what constitutes a transaction of medium, large and very large size, and the duration of deferrals. 

(10) To ensure that the deferral regime for bonds is simple and well calibrated, it is necessary to distinguish between three bond categories: (i) sovereign and other public bonds; (ii) corporate, convertible and other bonds; and (iii) covered bonds. To allow for a better distinction between liquid and illiquid bonds and therefore for a more efficient calibration, bonds should be further grouped for each bond category. 

(11) According to the definition of liquid market set out in Article 2, point (17)(a)(i), of Regulation (EU) No 600/2014, a liquid market should be assessed according to the issuance size of a bond. To cater for potential changes to the issuance size of a bond over time, including due to bond taps or buybacks, it is necessary to assess a liquid market on the basis of the bond issuance outstanding amount (that is, the total value of bonds that have been issued and are held by investors at a given point in time), rather than the bond initial issuance size (that is, the total value of bonds that is offered to investors in the primary market at the time of issuance). 

(12) To introduce a simpler transparency regime that does not rely on frequent liquidity assessments, the provisions applicable to structured finance products and emission allowances set out in Delegated Regulation (EU) 2017/583 should be amended. Based on a data analysis performed by the European Securities and Markets Authority (‘ESMA’), and building on ESMA’s past experience in calibrating transparency requirements, structured finance products and emission allowances different from Union emission allowances should be considered as not having a liquid market, while Union emission allowances should be considered as having a liquid market. With respect to structured finance products, the existing pre-trade and post-trade transparency thresholds and the existing price deferral duration for illiquid structured finance products, as set out in Delegated Regulation (EU) 2017/583, should be maintained. However, considering the illiquidity of structured finance products, and considering that Regulation (EU) No 600/2014 no longer allows competent authorities to provide for a supplementary deferral period for those instruments, a standard volume deferral duration of up to two weeks after the date of the transaction should be introduced. With respect to emission allowances, pre-trade and post-trade transparency thresholds should be set in tonnes of CO2 (tCO2) rather than lots, as tCO2 is the common unit of measurement for those instruments. Based on a data analysis performed by ESMA, while taking into account the liquid nature of Union emission allowances, the maximum deferral period for Union emission allowances should be no longer than 19:00 local time on the second working day after the date of the transaction. 

(13) Based on a data analysis performed by ESMA, all exchange traded commodities (‘ETCs’) and exchange traded notes (‘ETNs’) should be considered as not having a liquid market. In line with the approach taken for structured finance products, a standard volume deferral duration of up to two weeks after the date of the transaction should also be introduced for ETCs and ETNs. 

(14) Regulation (EU) 2024/791 introduced amendments to the possibility for competent authorities to supplement the deferral regime under Regulation (EU) No 600/2014. Firstly, such possibility was limited to sovereign debt instruments. Secondly, the power of a competent authority to extend the period of deferred publication was limited to transactions executed in respect of the sovereign debt instruments issued by the Member State of that competent authority. With regard to sovereign debt instruments not issued by a Member State, the power to extend the period of deferred publication was given to ESMA. Thirdly, the maximum duration of supplementary deferrals was limited to six months. Competent authorities may set a lower deferral duration within that limit. Delegated Regulation (EU) 2017/583 should therefore be amended to reflect those changes. 

(15) With regard to the publication of the details of several transactions in an aggregated form, as referred to in Article 11(3), point (b), of Regulation (EU) No 600/2014, the aggregation methodology should remain unchanged. Therefore, transactions benefitting from an extended deferral should be aggregated by the respective trading venues and APAs over the course of one calendar week and should be published on the following Tuesday before 9:00 local time. 

(16) To provide market participants with sufficient time to prepare for the new requirements, while ensuring the timely establishment of the bond consolidated tape, the date of application of the amendments to Delegated Regulation (EU) 2017/583 set out in this Regulation should be deferred. 

(17) Delegated Regulation (EU) 2017/583 should therefore be amended accordingly. 

(18) To ensure a harmonised application of pre-trade transparency requirements in respect of equity instruments, and considering the details of pre-trade data that trading venues are required to provide to the equity consolidated tape provider under Article 22a of Regulation (EU) No 600/2014, Commission Delegated Regulation (EU) 2017/587 should be amended to specify the details of pre-trade data to be made public by market operators and investment firms operating a trading venue for each class of financial instrument, as required by Article 3(1) of Regulation (EU) No 600/2014. 

(19) Iceberg orders are orders which have a displayed volume (peak) available for execution relating to a portion of a quantity and a hidden volume relating to the remainder of the quantity, kept in the order management facility which is capable of execution only after execution of the disclosed order. To cater for the possibility of execution of the hidden part of iceberg orders in narrowly defined circumstances, Article 8 of Delegated Regulation (EU) 2017/587 on the order management facility waiver should be amended. 

(20) Regulation (EU) 2024/791 introduced into Article 2(1) of Regulation (EU) No 600/2014 a definition of ‘designated publishing entity’, and inserted into that Regulation a new Article 21a, which allows an investment firm that is a designated publishing entity to be responsible for making a transaction public through an APA. That same new Article 21a also specifies which party to a transaction should be responsible for making a transaction public where one, neither or both of the parties involved are designated publishing entities. It follows that the requirements laid down in Delegated Regulation (EU) 2017/587 that aim to identify the investment firm responsible for making a transaction public through an APA should be deleted. 

(21) To ensure a proper calibration of the thresholds for the application of pre-trade equity transparency requirements to systematic internalisers, the methodology to determine the standard market size (‘SMS’) set out in Article 11 of Delegated Regulation (EU) 2017/587 should be refined by increasing the granularity of the average trade size buckets. The threshold to determine the minimum quote size for systematic internalisers should correspond to the SMS. Taking into account the international best practices, the competitiveness of Union firms, the significance of the market impact, and the efficiency of price formation, the threshold to determine the size up to which pre-trade equity transparency obligations apply to systematic internalisers should correspond to twice the SMS. 

(22) To ensure an accurate representation of market activity and price formation in equity post-trade transparency, it is necessary to amend Article 13 of Delegated Regulation (EU) 2017/587 to determine and clarify the scope of transactions that do not contribute to price discovery, including “give-up” and “give-in” transactions. Those transactions are technical trades carried out primarily for operational purposes or to facilitate risk management between investment firms, and thus do not represent independent pricesetting events. For that reason, they should be excluded from post-trade transparency requirements. 

(23) Annex I to Delegated Regulation (EU) 2017/587 sets out the types of trading systems and, for each system, a description of its main features and the information to be made public in accordance with Article 3 of Regulation (EU) No 600/2014. That Annex should be modified to specify that trading systems operated by means of an order book that only include market maker quotes and a trading algorithm operated without human intervention that matches incoming buy and sell orders with resting market maker quotes on the basis of the best available price on a continuous basis should be considered as continuous order book trading systems. Trading systems operated by means of an order book, where the quotes of the liquidity providers are confirmed before the potential execution of an incoming order, and a trading algorithm that matches incoming buy and sell orders with the confirmed quotes of the liquidity providers without human intervention on the basis of the best available price on a continuous basis should also be considered as continuous order book trading systems. 

(24) To provide market participants and competent authorities with sufficient time to prepare for the new requirements, while ensuring the timely establishment of the equity consolidated tape, the date of application of provisions in this Regulation related to the pre-and post-trade transparency details to be made public with respect to equity instruments, to the determination of the most relevant market in terms of liquidity for equity instruments, to orders in respect of equity instruments that are large in scale, and to the methodology of the transparency calculations for equity instruments should be deferred. 

(25) Delegated Regulation (EU) 2017/587 should therefore be amended accordingly. 

(26) This Regulation is based on the draft regulatory technical standards submitted to the Commission by ESMA. ESMA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Securities and Markets Stakeholder Group established by Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council. ESMA has also considered the advice of the expert stakeholder group on equity and non-equity market data quality and transmission protocols in accordance with Article 22b(3), point (b), of Regulation (EU) No 600/2014. 

(27) To ensure an effective transparency regime and the successful establishment of the consolidated tapes for bonds and equity, and considering that all provisions in this Regulation concern pre- and post-trade transparency, it is necessary to include the amendments to Delegated Regulations (EU) 2017/583 and (EU) 2017/587 to be adopted under Article 4(6), Article 7(2), Article 9(5), Article 11(4), Article 14(7), Article 20(3), Article 21(5), Article 22(3) and Article 23(3), respectively, of Regulation (EU) No 600/2014 into a single Regulation,