On 17 February 2021, ESMA issued decision on delegation of powers re opinions.
- ESMA board of supervisors issued decision of 27 January 2021 on delegation of powers to its Chair for adoption of non-controversial opinions on position limits under MIFID II.
- Art 57(5) of MIFID II requires competent authority to notify ESMA of the exact position limits they intend to set per methodology for calculation established in reg 2017/5913.
- Also requires ESMA to issue opinion to competent authority concerned within 2 months of notification, assessing compatibility of position limits and market abuse prevention.
- Supporting orderly pricing and settlement conditions referred to in art 57(1) MIFID II, with methodology for calculation established in regulation 2017/591.
- ESMA has already issued and published a significant number of opinions on position limits and more opinions are expected to be issued in the future.
- Current adoption procedure has created significant administrative burden not only for ESMA staff but also for competent authorities and board members reviewing opinions.
- So desirable power to adopt non-controversial opinions is delegated to Chair of ESMA.
- Delegation to be exercised in accordance with restrictions, conditions set in decision.
- Conditions provide guidance for exercise of delegated powers, limit discretion involved.
- The board retains powers re controversial opinions for purposes of art 57(5) MIFID II.
- Non-controversial opinions means those draft opinions prepared by ESMA staff with which none of the CDTF members disagrees.
- Decision took effect immediately.