On 1 April 2020, the European Securities and Markets Authority (ESMA) issued a public statement intended to clarify issues regarding the publication by execution venues and firms of the general best execution reports required under Regulatory Technical Standards (RTS) 27 and 28 of MiFID II.
The statement notes that the next general best execution reports are due to be published on the following dates:
- for execution venues, 31 March 2020 in respect of RTS 27 reports on the quarterly information regarding the reporting period from 1 October to 31 December 2019; and
- for firms, 30 April 2020 in respect of RTS 28 reports on the annual information regarding the reporting period of 2019, as indicated in Q&A 5 of the ESMA Questions and Answers on MiFID II Investor Protection and Intermediaries topics.
In the statement ESMA recognises that, considering the exceptional circumstances created by the COVID-19 outbreak, execution venues and firms may need to deprioritise efforts for the publication of these general reports concerning 2019.
ESMA is therefore recommending that Member State competent authorities (NCAs) take into account these circumstances by considering the possibility that:
- execution venues unable to publish RTS 27 reports due by 31 March 2020 may only be able to publish them as soon as reasonably practicable after that date and no later than by the following reporting deadline (i.e. 30 June 2020); and
- firms may only be able to publish the RTS 28 reports due by 30 April 2020 on or before 30 June 2020.
ESMA encourages NCAs not to prioritise supervisory action against execution venues and firms in respect of the deadlines of the general best execution reports for the periods referred to above. ESMA also encourages NCAs to generally apply a risk-based approach in the exercise of supervisory powers in their day-to-day enforcement of RTS 27 and 28 concerning these deadlines.
ESMA recommends that firms and execution venues keep records of the internal decisions taken in relation to the expected delay.