EU wholesale markets – ESMA consultation on RTS 2 equity derivatives transparency requirements

On 3 April 2025 the European Securities and Markets Authority (“ESMA”) published a consultation, accompanied by a press release, setting out proposals for regulatory technical standards (“RTS”) relating to transparency for derivatives, package orders and input and output data for the OTC derivatives consolidated tape under the MiFID review. The consultation paper, which is the fourth consultation under the MiFID review, closes for comments on 3 July 2025.

Background 

The consultation sets out proposals under the derivatives transparency mandate granted to ESMA by articles 8a and 11a of MiFIR (as amended). Article 8a relates to pre-trade transparency and article 11a relates to post-trade deferrals for derivatives, whereas articles 8 and 11 (as amended) relate to pre-trade transparency and post-trade deferrals (respectively) for bonds, structured finance products (“SFPs”) and emission allowances (“EUAs”). The consultation follows the publication by ESMA in December 2024 of a final report relating to its transparency mandate for bonds, SFPs and EUAs.

Key proposals 

The consultation invites feedback on the following key proposals: 

(1) The development of a new RTS relating to transparency requirements for derivatives under articles 8a and 11a MiFIR 

ESMA is seeking views on the following aspects in particular: 

• The proposed scope of derivatives that would be subject to the new regime, which will include exchange-traded derivatives traded on a regulated market, as well as a subset of OTC derivatives and specified interest rate and credit derivatives; 
• a proposal to apply the new MiFIR liquidity determination to pre-trade waivers; 
• a proposed new deferral regime for exchange-traded derivatives and OTC derivatives, which includes different size thresholds and deferral durations; and 
• proposed changes to post-trade transparency fields and flags, including the adoption of a static liquidity determination for derivatives. 

The draft standalone RTS that sets out the detailed proposals relating to the pre-trade and post-trade transparency requirements for derivatives is set out in Annex III of the consultation. 

ESMA notes that while it ultimately plans to fully recast RTS 2 to encompass the transparency provisions for all non-equity instruments in a single RTS, the current proposal to initially adopt a standalone RTS to address the points above in relation to derivatives would avoid drafting consolidated provisions now, thus allowing the Commission to adopt the amended RTS 2 for bonds, SFPs and EUAs seamlessly before moving on to drafting a consolidated RTS 2. 

(2) Changes to provisions relating to conditions under which trade transparency requirements are disapplied for transactions entered into by European System of Central Banks (“ESCB”) members 

ESMA proposes to make it clear that article 1(6) of MiFIR shall only apply to FX transactions entered into in order to hold or manage official reserves of member states whose currency is not the EUR. 

(3) Amend Commission Delegated Regulation (EU) 2017/2194 on the treatment of package orders 

This RTS has applied since 3 January 2018. Notwithstanding that neither the definition of package orders, nor the mandate for ESMA relating to package orders has changed as a result of the MiFID review, ESMA has determined that it is necessary for the RTS to be reviewed in the context of the amended scope of the transparency regime and the proposed new liquidity determination approach set out in the consultation. The draft RTS is set out in Annex III of the consultation. 

(4) Amend Commission Delegated Regulation (EU) 2017/583 on input and output data of consolidated tape providers (“CTPs”) 

Under article 22b(3) of MiFIR (as amended), ESMA is mandated to develop draft an RTS that prescribes data quality requirements for prospective CTPs and data contributors, covering the OTC derivatives consolidated tape. The consultation focuses on those data fields that are relevant to the derivatives CTP. The draft RTS is set out in Annex III of the consultation. 

Timing 

The consultation closes on 3 July 2025. Following this, ESMA intends to publish its final report, and to submit draft RTS to the European Commission, by the end of Q4 2025. 

Authored by Keti Tano, Dominic Hill, and Michael Thomas.