Article 2
Definitions
1.
For the purposes of this Regulation, the following definitions apply:
(1)
‘investment firm’ means an investment firm as defined in Article 4(1)(1) of Directive 2014/65/EU;
(2)
(3)
‘ancillary services’ means ancillary services as defined in Article 4(1)(3) of Directive 2014/65/EU;
(4)
‘execution of orders on behalf of clients’ means execution on behalf of clients as defined in Article 4(1)(5) of Directive 2014/65/EU;
(5)
‘dealing on own account’ means dealing on own account as defined in Article 4(1)(6) of Directive 2014/65/EU;
(6)
‘market maker’ means a market maker as defined in Article 4(1)(7) of Directive 2014/65/EU;
(7)
‘client’ means a client as defined in Article 4(1)(9) of Directive 2014/65/EU;
(8)
‘professional client’ means a professional client as defined in Article 4(1)(10) of Directive 2014/65/EU;
(8a)
‘SME growth market’ means an SME growth market as defined in Article 4(1), point (12), of Directive 2014/65/EU;
(9)
‘financial instrument’ means a financial instrument as defined in Article 4(1)(15) of Directive 2014/65/EU;
(10)
‘market operator’ means a market operator as defined in Article 4(1)(18) of Directive 2014/65/EU;
(11)
‘multilateral system’ means any system or facility in which multiple third-party buying and selling trading interests in financial instruments are able to interact;
(12)
‘systematic internaliser’ means a systematic internaliser as defined in Article 4(1)(20) of Directive 2014/65/EU;
(13)
‘regulated market’ means a regulated market as defined in Article 4(1)(21) of Directive 2014/65/EU;
(14)
‘multilateral trading facility’ or ‘MTF’ means a multilateral trading facility as defined in Article 4(1)(22) of Directive 2014/65/EU;
(15)
‘organised trading facility’ or ‘OTF’ means an organised trading facility as defined in Article 4(1)(23) of Directive 2014/65/EU;
(16)
‘trading venue’ means a trading venue as defined in Article 4(1)(24) of Directive 2014/65/EU;
(16a)
‘designated publishing entity’ means an investment firm responsible for making transactions public through an APA in accordance with Article 20(1) and Article 21(1);
(17)
‘liquid market’ means:
(a)
for the purposes of Articles 9, 11 and 11a:
(i)
as regards bonds, a market in which there are ready and willing buyers and sellers on a continuous basis, where the market is assessed according to the issuance size of the bond;
(ii)
as regards a financial instrument or a class of financial instrument other than those referred to in point (i), a market in which there are ready and willing buyers and sellers on a continuous basis, where the market is assessed in accordance with the following criteria, taking into consideration the specific market structures of the particular financial instrument or of the particular class of financial instrument:
—
the average frequency and size of transactions over a range of market conditions, having regard to the nature and life cycle of products within the class of financial instrument,
—
the number and type of market participants, including the ratio of market participants to traded financial instruments in a particular product,
—
the average size of spreads, where available,
—
the issuance size, where appropriate;
(b)
for the purposes of Articles 4, 5 and 14, a market for a financial instrument that is traded daily, where the market is assessed according to the following criteria:
(i)
the market capitalisation of that financial instrument;
(ii)
the average daily number of transactions in that financial instrument;
(iii)
the average daily turnover for that financial instrument;
(18)
‘competent authority’ means a competent authority as defined in point (26) of Article 4(1) of Directive 2014/65/EU and, for the authorisation and supervision of data reporting services providers, ESMA, with the exception of those approved reporting mechanisms (ARMs) and approved publication arrangements (APAs) with a derogation in accordance with paragraph 3 of this Article;
(19)
‘credit institution’ means a credit institution as defined in Article 4(1)(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council ( 3 );
(20)
‘branch’ means a branch as defined in Article 4(1)(30) of Directive 2014/65/EU;
(21)
‘close links’ means close links as defined in Article 4(1)(35) of Directive 2014/65/EU;
(22)
‘management body’ means a management body as defined in Article 4(1)(36) of Directive 2014/65/EU;
(22a)
‘senior management’ means senior management as defined in point (37) of Article 4(1) of Directive 2014/65/EU;
(23)
‘structured deposit’ means a structured deposit as defined in Article 4(1)(43) of Directive 2014/65/EU;
(24)
‘transferable securities’ means transferable securities as defined in Article 4(1)(44) of Directive 2014/65/EU;
(25)
‘depositary receipts’ means depositary receipts as defined in Article 4(1)(45) of Directive 2014/65/EU;
(26)
‘exchange-traded fund’ or ‘ETF’ means an exchange-traded fund as defined in Article 4(1)(46) of Directive 2014/65/EU;
(27)
‘certificates’ means those securities which are negotiable on the capital market and which in case of a repayment of investment by the issuer are ranked above shares but below unsecured bond instruments and other similar instruments;
(28)
‘structured finance products’ means those securities created to securitise and transfer credit risk associated with a pool of financial assets entitling the security holder to receive regular payments that depend on the cash flow from the underlying assets;
(29)
‘derivatives’ means those financial instruments defined in point (44)(c) of Article 4(1) of Directive 2014/65/EU; and referred to in Annex I, Section C (4) to (10) thereto;
(30)
‘commodity derivatives’ means those financial instruments defined in point (44)(c) of Article 4(1) of Directive 2014/65/EU; which relate to a commodity or an underlying referred to in Section C(10) of Annex I to Directive 2014/65/EU; or in points (5), (6), (7) and (10) of Section C of Annex I thereto;
(31)
‘CCP’ means a CCP within the meaning of Article 2(1) of Regulation (EU) No 648/2012;
(32)
‘exchange-traded derivative’ means a derivative that is traded on a regulated market or on a third-country market considered to be equivalent to a regulated market in accordance with Article 28 of this Regulation, and as such does not fall within the definition of an OTC derivative as defined in Article 2(7) of Regulation (EU) No 648/2012;
(32a)
‘OTC derivative’ means an OTC derivative as defined in Article 2, point (7), of Regulation (EU) No 648/2012;
(33)
‘actionable indication of interest’ means a message from one member or participant to another within a trading system in relation to available trading interest that contains all necessary information to agree on a trade;
(34)
‘approved publication arrangement’ or ‘APA’ means a person authorised under this Regulation to provide the service of publishing trade reports on behalf of investment firms pursuant to Articles 20 and 21;
(35)
‘consolidated tape provider’ or ‘CTP’ means a person authorised in accordance with Title IVa, Chapter 1, of this Regulation to provide the service of collecting data from trading venues and APAs, and of consolidating those data into a continuous electronic live data stream providing core market data and regulatory data;
(36)
‘approved reporting mechanism’ or ‘ARM’ means a person authorised under this Regulation to provide the service of reporting details of transactions to competent authorities or to ESMA on behalf of investment firms;
(36a)
‘data reporting services provider’ means a person referred to in points (34) to (36) and a person referred to in Article 27b(2);
(36b)
‘core market data’ means:
(a)
all of the following data on a given share or ETF at any given timestamp:
(i)
for continuous order books, the European best bid and offer with the corresponding volume;
(ii)
for auction trading systems, the price at which the trading algorithm would be best satisfied and the volume potentially executed at that price by participants in that system;
(iii)
the transaction price and volume executed at that price;
(iv)
for transactions, the type of trading system and the applicable waivers and deferrals;
(v)
except for the information referred to in points (i) and (ii), the market identifier code uniquely identifying the trading venue and, for other execution venues, the identifier code identifying the type of execution venue;
(vi)
the standardised instrument identifier that applies across execution venues;
(vii)
the timestamp information on the following, as applicable:
—
the execution of the transaction and any amendment thereto,
—
the entry of the best bids and offers into the order book,
—
the indication, in an auction trading system, of the prices or volumes,
—
the publication by the trading venues of the elements listed in the first, second and third indents,
—
the dissemination of core market data;
(b)
all of the following data on a given bond or OTC derivative at any given timestamp:
(i)
the transaction price and quantity or size executed at that price;
(ii)
the market identifier code uniquely identifying the trading venue and, for other execution venues, the identifier code identifying the type of execution venue;
(iii)
for bonds, the standardised instrument identifier that applies across execution venues;
(iv)
for OTC derivatives, the identifying reference data as referred to in Article 27(1), second subparagraph;
(v)
the timestamp information on the following:
—
the execution of the transaction and any amendment thereto,
—
the publication of the transaction by the trading venues,
—
the dissemination of core market data;
(vi)
the type of trading system and the applicable waivers and deferrals;
(36c)
‘regulatory data’ means data related to the status of systems matching orders in financial instruments and data related to the trading status of individual financial instruments;
(37)
‘home Member State’ means a home Member State as defined in Article 4(1)(55) of Directive 2014/65/EU;
(38)
‘host Member State’ means a host Member State as defined in Article 4(1)(56) of Directive 2014/65/EU;
(39)
‘benchmark’ means any rate, index or figure, made available to the public or published that is periodically or regularly determined by the application of a formula to, or on the basis of the value of one or more underlying assets or prices, including estimated prices, actual or estimated interest rates or other values, or surveys and by reference to which the amount payable under a financial instrument or the value of a financial instrument is determined.
(40)
‘interoperability arrangement’ means an interoperability arrangement as defined in Article 2(12) of Regulation (EU) No 648/2012;
(41)
‘third-country financial institution’ means an entity, the head office of which is established in a third country, that is authorised or licensed under the law of that third country to carry out any of the services or activities listed in Directive 2013/36/EU, Directive 2014/65/EU; Directive 2009/138/EC of the European Parliament and of the Council ( 4 ), Directive 2009/65/EC of the European Parliament and of the Council ( 5 ), Directive 2003/41/EC of the European Parliament and of the Council ( 6 ) or Directive 2011/61/EU of the European Parliament and of the Council ( 7 );
(42)
‘third-country firm’ means a third-country firm as defined in Article 4(1)(57) of Directive 2014/65/EU;
(43)
‘wholesale energy product’ means wholesale energy products as defined in Article 2(4) of Regulation (EU) No 1227/2011 of the European Parliament and of the Council ( 8 );
(44)
‘agricultural commodity derivatives’ means derivative contracts relating to products listed in Article 1 of, and Annex I, Parts I to XX and XXIV/1 to, Regulation (EU) No 1308/2013 of the European Parliament and of the Council ( 9 );
(45)
‘liquidity fragmentation’ means a situation in which:
(a)
participants in a trading venue are unable to conclude a transaction with one or more other participants in that venue because of the absence of clearing arrangements to which all participants have access; or
(b)
a clearing member or its clients would be forced to hold their positions in a financial instrument in more than one CCP which would limit the potential for the netting of financial exposures;
(46)
‘sovereign debt’ means sovereign debt as defined in Article 4(1)(61) of Directive 2014/65/EU;
(47)
‘portfolio compression’ means a risk reduction service in which two or more counterparties wholly or partially terminate some or all of the derivatives submitted by those counterparties for inclusion in the portfolio compression and replace the terminated derivatives with another derivative whose combined notional value is less than the combined notional value of the terminated derivatives;
(48)
‘exchange for physical’ means a transaction in a derivative contract or other financial instrument contingent on the simultaneous execution of an equivalent quantity of an underlying physical asset;
(49)
‘package order’ means an order priced as a single unit:
(a)
for the purpose of executing an exchange for physical; or
(b)
in two or more financial instruments for the purpose of executing a package transaction;
(50)
‘package transaction’ means:
(a)
an exchange for physical; or
(b)
a transaction involving the execution of two or more component transactions in financial instruments and which fulfils all of the following criteria:
(i)
the transaction is executed between two or more counterparties;
(ii)
each component of the transaction bears meaningful economic or financial risk related to all the other components;
(iii)
the execution of each component is simultaneous and contingent upon the execution of all the other components.
2.
The Commission shall be empowered to adopt delegated acts in accordance with Article 50 to specify certain technical elements of the definitions laid down in paragraph 1 to adjust them to market developments.
3.
The Commission is empowered to adopt delegated acts in accordance with Article 50, specifying criteria to identify those ARMs and APAs that, by way of derogation from this Regulation on account of their limited relevance for the internal market, are subject to authorisation and supervision by a competent authority of a Member State as defined in point (26) of Article 4(1) of Directive 2014/65/EU.
When adopting the delegated act, the Commission shall take into account one or more of the following elements:
(a)
the extent to which the services are provided to investment firms authorised in one Member State only;
(b)
the number of trade reports or transactions;
(c)
Where an entity is supervised by ESMA for any services provided in its capacity as a data reporting services provider under this Regulation, none of its activities as an ARM or APA shall be excluded from ESMA supervision under any delegated act adopted pursuant to this paragraph.
( 3 ) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).
( 4 ) Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1).
( 5 ) Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).
( 6 ) Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ L 235, 23.9.2003, p. 10).
( 7 ) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).
( 8 ) Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326, 8.12.2011, p. 1).
( 9 ) Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671).