Status: Please note you should read all Brexit changes to the FCA Handbook and BTS alongside the main FCA transitional directions. Where these directions apply the 'standstill', firms have the choice between complying with the pre-IP completion day rules, or the post-IP completion day rules. To see a full list of Handbook modules affected, please see Annex B to the main FCA transitional directions.

COBS 1.2 Markets in Financial Instruments Directive

References in COBS to the MiFID Org Regulation

COBS 1.2.1G
  1. (1)

    1This sourcebook contains a number of provisions which transposed MiFID. A rule transposed a provision of MiFID if it is followed by a ‘Note:’ indicating the article of MiFID or the MiFID Delegated Directive which it transposed2.

  2. (2)

    In order to help firms which are subject to those requirements which implemented2 MiFID to understand the full extent of those requirements, this sourcebook also reproduces a number of provisions of the 2MiFID Org Regulation, marked with the status letters “UK”2.

  3. (3)

    This sourcebook does not reproduce the MiFID Org Regulation in its entirety. A firm to which provisions of the MiFID Org Regulation applies should refer to Commission Delegated Regulation (EU) 2017/565 as published in2 the electronic version of the Official Journal of the European Union and as amended by the Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018.2

COBS 1.2.2G
  1. (1)

    In some cases, this sourcebook applies provisions of the MiFID Org Regulation to firms in relation to business other than their MiFID business as if those provisions were rules.

  2. (2)

    Third country investment firms should also have regard to the rule in GEN 2.2.22AR which concerns the application of the MiFID Org Regulation to such firms.

COBS 1.2.3R
  1. (1)

    Where this sourcebook, or the rule in GEN 2.2.22AR, applies provisions of the MiFID Org Regulation as if they were rules, (2) applies to enable firms to correctly interpret and understand the application of those provisions.

  2. (2)

    In this sourcebook, a word or phrase found in a provision marked “UK”2 and referred to in column (1) of the table below has the meaning indicated in the corresponding row of column (2) of the table.

    (1)

    (2)

    “ancillary services”

    ancillary service

    “client” and “potential client”

    client

    “competent authority”

    FCA

    “conditions specified in Article 3(2)”

    website conditions

    “derivative”

    those financial instruments referred to in paragraphs 4 to 10 of Part 1 of Schedule 2 to the Regulated Activities Order2

    “Directive 2009/65/EC”

    UCITS Directive

    “Directive 2014/65/EU”

    MiFID

    “distributing units in collective investment undertakings”

    distributing units in a UCITS

    “durable medium”

    durable medium

    “eligible counterparty”

    eligible counterparty

    “financial analyst”

    financial analyst

    “financial instrument”

    financial instrument and (if the context requires) designated investment and structured deposit

    “funds”

    client money that a firm receives or holds for, or on behalf of, a client in the course of, or in connection with, its MiFID business and (if the context requires) its equivalent business of a third country investment firm.

    “group”

    as defined in section 421 of the Act2

    “investments”

    financial instrument and (if the context requires) designated investment and structured deposit

    “investment advice”

    personal recommendation

    “investment firm” and “firm”

    firm

    “investment research”

    investment research

    “investment service” and “investment services and activities”

    investment service and investment services and/or activities or (if the context requires) designated investment business

    “market maker”

    market maker

    “periodic statement”

    periodic statement

    “PRIIPs KID”

    key information document

    “portfolio management” and “portfolio management service”

    portfolio management

    “professional client”

    professional client

    “professional client covered by Part 2 of Schedule 1 to Regulation (EU) No 600/2014”2

    per se professional client

    “professional client in accordance with Part 3 of Schedule 1 to Regulation (EU) No 600/2014”2

    elective professional client

    “Regulation (EU) No. 1286/2014”

    PRIIPs Regulation

    “relevant person”

    relevant person

    “retail client”

    retail client

    “shall”

    must

    “tied agent”

    tied agent

    “UCITS KIID”

    key investor information document

  3. (3)

    In this sourcebook, where a reproduced provision of an article of the MiFID Org Regulation refers to another part of the MiFID Org Regulation, that other provision must also be read with reference to the table in (2).

COBS 1.2.4G

Firms to which provisions of the MiFID Org Regulation are applied as if they were rules should use the text of any preamble to the relevant provision marked “UK”2 to assist in interpreting any such references or cross-references.

Interpretation – “in good time”

COBS 1.2.5G
  1. (1)

    Certain of the provisions in this sourcebook which implemented2 MiFID require firms to provide clients with information “in good time”.

  2. (2)

    In determining what constitutes the provision of information “in good time”, a firm should take into account, having regard to the urgency of the situation, the client’s need for sufficient time to read and understand the information before taking an investment decision.

  3. (3)

    A client is likely to require more time to review information given on a complex or unfamiliar product or service, or a product or service a client has no experience with, than a client considering a simpler or more familiar product or service, or where the client has relevant prior experience.

[Note: recital 83 of MiFID]

ESMA Guidelines

[Note: ESMA has issued a number of guidelines under article 16(3) of the ESMA Regulation in relation to certain aspects of MiFID. These include:

guidelines on certain aspects of the MiFID suitability requirements which also include guidelines on conduct of business obligations

, 28 May 2018/ESMA35-43-869 (EN);2

guidelines on cross-selling practices, 11 July 2016/ESMA/2016/574 (EN)2; and

guidelines on complex debt instruments and structured deposits, 4 February 2016/ESMA/2015/1787 (EN)2].