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MAR 5.1 Application1

2

Who and what?

MAR 5.1.1 R RP

1This chapter applies to:

(1)

a UK domestic firm which operates an MTF from an establishment in the United Kingdom or elsewhere; or

(2)

an overseas firm which operates an MTF from an establishment in the United Kingdom.

Status of EU provisions as rules in certain instances

MAR 5.1.2 R

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MAR 5.1.3 G RP

2 GEN 2.2.22AR applies to ensure that a third country investment firm should not be treated in a more favourable way than an EEA firm.

MAR 5.2 Purpose1

MAR 5.2.1 G RP

1The purpose of this chapter is to implement the provisions of MiFID relating to firms operating MTFs, specifically articles 18, 19, 31, 32, 33, 48, 49 and 502 of MiFID. This chapter does not apply to bilateral systems, which are excluded from the MTF definition. 2

MAR 5.3 Trading process requirements1

Rules, procedures and arrangements

MAR 5.3.1 R RP

1A firm4 must have:

  1. (1)

    transparent4 rules and procedures for fair and orderly trading;

    [Note: articles 18(1) and 19(1)4

    of MiFID]

  2. (2)

    objective criteria for the efficient execution of orders which are established and implemented in non-discretionary rules4;

    [Note: articles 18(1) and 19(1)4 of MiFID]

  3. (2A)

    arrangements for the sound management of the technical operations of the facility, including the establishment of effective contingency arrangements to cope with the risks of systems disruption;4

    [Note: article 18(1) of MiFID]4

  4. (3)

    transparent rules regarding the criteria for determining the financial instruments that can be traded under its systems;

    [Note: subparagraph 1 of article 18(2)4 of MiFID]

  5. (4)

    published,4 transparent and non-discriminatory4 rules, based on objective criteria, governing access to its facility and which4 must provide that its members or participants are investment firms, CRDcredit institutions2 or other persons4 who:

    2
    1. (a)

      are of sufficient good repute4;

    2. (b)

      have a sufficient level of trading ability, competence and experience4;

    3. (c)

      where applicable, have adequate organisational arrangements; and4

    4. (d)

      have sufficient resources for the role they are to perform, taking into account the different financial arrangements that the firm operating the MTF may have established in order to guarantee the adequate settlement of transactions;4

    [Note: articles 18(3), 19(2) and 53(3)4 of MiFID]

  6. (5)

    arrangements to4 provide, or be satisfied that there is access to, sufficient publicly available information to enable its users to form an investment judgement4, taking into account both the nature of the users and the types of instrument traded; and4

    [Note: subparagraph 2 of article 18(2)4 of MiFID]

  7. (6)

    (as between the interests of the MTF, its owners, or the firm and those of the members and participants or users in the sound functioning of the trading venue) arrangements to identify clearly and to manage any conflict with adverse consequences for:4

    1. (a)

      the operation of the trading venue for the members and participants or users; or4

    2. (b)

      the members and participants or users otherwise.4

    [Note: article 18(4) of MiFID]4

Functioning of an MTF

MAR 5.3.1A R RP

4A firm must:

  1. (1)

    ensure the MTF has at least three materially active members or users who each have the opportunity to interact with all the others in respect of price formation;

    [Note: article 18(7) of MiFID]

  2. (2)

    have arrangements to ensure it is adequately equipped to manage the risks to which it is exposed, to implement appropriate arrangements and systems to identify all significant risks to its operation and put in place effective measures to mitigate those risks;

    [Note: article 19(3)(a) of MiFID]

  3. (3)

    have available at the time of authorisation and on an ongoing basis, sufficient financial resources to facilitate its orderly functioning, having regard to the nature and extent of the transactions concluded on the venue and the range and degree of the risks to which it is exposed;

    [Note: article 19(3)(c) of MiFID]

  4. (4)

    not execute orders against proprietary capital, or engage in matched principal trading;

    [Note: article 19(5) of MiFID]

  5. (5)

    make available data relating to the quality of execution of transactions on that venue, including details about price, costs, speed and likelihood of execution for individual financial instruments to the public in the following manner:

    1. (a)

      at least on an annual basis; and

    2. (b)

      without any charges; and

    [Note: article 27(3) of MiFID]

  6. (6)

    provide the following to the FCA:

    1. (a)

      a detailed description of the functioning of the MTF, including any links to or participation by a regulated market, an MTF, OTF or systematic internaliser owned by the same firm; and

    2. (b)

      a list of its members, participants and users.

    [Note: article 18(10) of MiFID and MiFID ITS 19 with regard to the content and format of the description of the functioning of MTFs]

MAR 5.3.1B G RP

4The requirement in MAR 5.3.1AR(4) does not prevent a firm, with the appropriate permission, from executing orders against its proprietary capital or engaging in matched principal trading outside the MTF it operates.

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Operation of a primary market in financial instruments not admitted to trading on a regulated market

MAR 5.3.7 G RP

1The FCA will be minded to impose a variation on thePart 4A permission4 of an MTF operator that operates a primary market in financial instruments4 not admitted to trading on a regulated market in order to ensure its fulfilment of the requirements in MAR 5.3.1 R as regards fair and orderly trading.

Transferable securities traded without issuer consent

MAR 5.3.8 R RP

1Where a transferable security, which has been admitted to trading on a regulated market, is also traded on an MTF without the consent of the issuer, the firm operating the MTF must not make the issuer subject to any obligation relating to initial, ongoing or ad hoc financial disclosure with regard to that MTF.

[Note: article 18(8)4 of MiFID]

MAR 5.3A Systems and controls for algorithmic trading

Systems and controls

MAR 5.3A.1 R RP

1A firm must ensure that the systems and controls, including procedures and arrangements, used in the performance of its activities are adequate, effective and appropriate for the scale and nature of its business.

MAR 5.3A.2 R RP

MAR 5.3A.1R applies in particular to systems and controls concerning:

  1. (1)

    the resilience of the firm’s trading systems;

  2. (2)

    its capacity to deal with peak order and message volumes;

  3. (3)

    the ability to ensure orderly trading under conditions of severe market stress;

  4. (4)

    the effectiveness of business continuity arrangements to ensure the continuity of the MTF’s services if there is any failure of its trading systems, including the testing of the MTF’s systems and controls;

  5. (5)

    the ability to reject orders that exceed predetermined volume and price thresholds or which are clearly erroneous;

  6. (6)

    the ability to ensure that algorithmic trading systems cannot create or contribute to disorderly trading conditions on the trading venue;

  7. (7)

    the ability to ensure any disorderly trading conditions which do arise from the use of algorithmic trading systems are capable of being managed, including systems to limit the ratio of unexecuted orders to transactions that may be entered into the MTF’s trading system by a member or participant;

  8. (8)

    the ability to ensure the flow of orders is capable of being slowed down if there is a risk of system capacity being reached;

  9. (9)

    the ability to limit and enforce the minimum tick size which may be executed on the MTF; and

  10. (10)

    the requirement for members and participants to carry out appropriate testing of algorithms, including providing environments to facilitate that testing.

[Note: article 48(1),(4) and (6) of MiFID, MiFID RTS 7, MiFID RTS 9, and MiFID RTS 11]

Market making agreements

MAR 5.3A.3 R RP

A firm must:

  1. (1)

    have written agreements with all investment firms pursuing a market making strategy on trading venues operated by it (market making agreements);

  2. (2)

    have schemes, appropriate to the nature and scale of a trading venue, to ensure that a sufficient number of investment firms enter into market making agreements which require them to post firm quotes at competitive prices with the result of providing liquidity to the market on a regular and predictable basis;

  3. (3)

    monitor and enforce compliance with the market making agreements;

  4. (4)

    inform the FCA of the content of its market making agreements; and

  5. (5)

    provide the FCA with any information it requests which the FCA reasonably requires to be satisfied that the market making agreements comply with this rule.

[Note: article 48(2) and (3) of MiFID, and MiFID RTS 8]

MAR 5.3A.4 R RP

A market making agreement in MAR 5.3A.3R(1) must specify:

  1. (1)

    the obligations of the investment firm in relation to the provision of liquidity;

  2. (2)

    where applicable, any obligations arising, or rights accruing, from the participation in a liquidity scheme mentioned in MAR 5.3A.3R(2); and

  3. (3)

    any incentives in terms of rebates or otherwise offered by the firm to the investment firm in order for it to provide liquidity to the MTF on a regular and predictable basis and, where applicable, any other rights accruing to the investment firm as a result of participation in the liquidity scheme.

[Note: article 48(3) of MiFID and MiFID RTS 8]

Measures to prevent disorderly markets

MAR 5.3A.5 R RP

A firm must have the ability to:

  1. (1)

    temporarily halt or constrain trading on the MTF if there is a significant price movement in a financial instrument on the MTF or a related trading venue during a short period; and

  2. (2)

    in exceptional cases, cancel, vary or correct any transaction.

[Note: article 48(5) of MiFID]

MAR 5.3A.6 R RP

For the purposes of MAR 5.3A.5R and to avoid significant disruptions to the orderliness of trading, a firm must calibrate the parameters for halting trading in a way which takes into account the following:

  1. (1)

    the liquidity of different asset classes and subclasses;

  2. (2)

    the nature of the trading venue market model; and

  3. (3)

    the types of users.

[Note: article 48(5) of MiFID]

MAR 5.3A.7 R RP

The firm must report the parameters mentioned in MAR 5.3A.6R to the FCA in writing, by electronic mail to an address for the usual supervisory contact of the firm at the FCA, and obtain an electronic confirmation of receipt.

[Note: article 48(5) of MiFID]

MAR 5.3A.8 R RP

A firm must have systems and procedures to notify the FCA if:

  1. (1)

    an MTF operated by the firm is material in terms of the liquidity of trading of a financial instrument in the EEA; and

  2. (2)

    trading is halted in that instrument.

[Note: article 48(5) of MiFID]

Direct electronic access

MAR 5.3A.9 R RP

A firm which permits direct electronic access to an MTF it operates must:

  1. (1)

    not permit members or participants of the MTF to provide such services unless they are:

    1. (a)

      investment firms authorised under MiFID; or

    2. (b)

      CRD credit institutions; or

    3. (c)

      third country firms providing the direct electronic access in the course of exercising rights under article 46.1 of MiFIR; or

    4. (d)

      third country firms providing the direct electronic access in the course of exercising rights under article 47.3 of MiFIR; or

    5. (e)

      third country firms providing the direct electronic access in accordance with the; exclusion in article 72 of the RAO or

    6. (f)

      a third country firm which does not come within MAR 5.3A.9R(1)(d) to (f) but is otherwise permitted to provide the direct electronic access under the Act; or

    7. (g)

      firms that come within article 2.1(a), (e), (i), or (j) of MiFID and have a Part 4A permission relating to investment services or activities;

  2. (2)

    set, and apply, criteria for the suitability of persons to whom direct electronic access services may be provided;

  3. (3)

    ensure that the member or participant of the MTF retains responsibility for adherence to the requirements of MiFID in respect of orders and trades executed using the direct electronic access service;

  4. (4)

    set standards for risk controls and thresholds on trading through direct electronic access;

  5. (5)

    be able to distinguish and if necessary stop orders or trading on that trading venue by a person using direct electronic access separately from:

    1. (a)

      other orders; and

    2. (b)

      trading by the member or participant providing the direct electronic access; and

  6. (6)

    have arrangements to suspend or terminate the provision of direct electronic access on that market by a member or participant in the case of any non-compliance with this rule.

[Note: article 48(7) of MiFID]

Co-location

MAR 5.3A.10 R RP

Where a firm permits co-location in relation to the MTF, its rules on co-location services must be transparent, fair and non-discriminatory.

[Note: article 48(8) of MiFID and MiFID RTS 10]

Fee structures

MAR 5.3A.11 R RP

A firm’s fee structure, for all fees it charges and rebates it grants in relation to the MTF, must:

  1. (1)

    be transparent, fair and non-discriminatory;

  2. (2)

    not create incentives to place, modify or cancel orders, or execute transactions, in a way which contributes to disorderly trading or market abuse; and

  3. (3)

    impose market making obligations in individual financial instruments or suitable baskets of financial instruments for any rebates that are granted.

[Note: article 48(9) of MiFID and MiFID RTS 10]

MAR 5.3A.12 G RP

Nothing in MAR 5.3A.11R prevents a firm:

  1. (1)

    adjusting its fees for cancelled orders according to the length of time the order was maintained;

  2. (2)

    calibrating its fees to each financial instrument to which they apply;

  3. (3)

    imposing a higher fee:

    1. (a)

      for placing an order which is cancelled than for an order which is executed;

    2. (b)

      on participants placing a high ratio of cancelled orders to executed orders; and

    3. (c)

      on a person operating a high-frequency algorithmic trading technique2,

    in order to reflect the additional burden on system capacity.

[Note: article 48(9) of MiFID]

Flagging orders, tick sizes and clock synchronisation

MAR 5.3A.13 R RP

A firm must require members and participants of an MTF operated by it to flag orders generated by algorithmic trading in order for the firm to be able to identify the following:

  1. (1)

    different algorithms used for the creation of orders; and

  2. (2)

    the persons initiating those orders.

[Note: article 48(10) of MiFID]

MAR 5.3A.14 R RP

A firm must adopt tick size regimes in:

  1. (1)

    shares, depositary receipts2, exchange-traded funds, certificates and other similar financial instruments traded on the MTF; and

  2. (2)

    any other financial instrument which is traded on that trading venue, as required by a regulatory technical standard made under article 49.3 or 49.4 of MiFID.

[Note: article 49 of MiFID and MiFID RTS 11]

MAR 5.3A.15 R RP

The tick size regime referred to in MAR 5.3A.14R must:

  1. (1)

    be calibrated to reflect the liquidity profile of the financial instrument in different markets and the average bid-ask spread, taking into account the desirability of enabling reasonably stable prices without unduly constraining further narrowing of spreads; and

  2. (2)

    adapt the tick size for each financial instrument appropriately.

[Note: article 49 of MiFID and MiFID RTS 11]

MAR 5.3A.16 G RP

Nothing in MAR 5.3A.14R or MAR 5.3A.15R requires a firm to act inconsistently with any regulatory technical standards made under article 49.3 or 49.4 of MiFID.

[Note: article 49 of MiFID]

MAR 5.3A.17 R RP

A firm must synchronise the business clocks it uses to record the date and time of any reportable event.

[Note: article 50 of MiFID and MiFID RTS 25]

MAR 5.3A.18 G RP

For the purpose of MAR 5.3A.17R, the regulatory technical standards made under article 50 of MiFID provide further requirements.

MAR 5.4 Finalisation of transactions1

MAR 5.4.1 R RP

1A firm2 must:

  1. (1)

    clearly inform its users of their respective responsibilities for the settlement of transactions executed in its2MTF; and

  2. (2)

    have in place the arrangements necessary to facilitate the efficient settlement of the transactions concluded under its systems.

[Note: articles 18(6) and 19(3)(b)2 of MiFID]

[Note: in relation to derivative transactions, MiFID RTS 26 contains requirements on the systems for the clearing of such transactions]2

MAR 5.5 Monitoring compliance with the rules of the MTF6

MAR 5.5.1 R RP

6A firm8 must:

  1. (1)

    have effective arrangements and procedures, relevant to its8MTF, for the regular monitoring of the compliance by its users with its rules; and

  2. (2)

    monitor the transactions undertaken by its users under its systems in order to identify breaches of those rules, disorderly trading conditions, system disruptions in relation to a financial instrument,8 or conduct that may involve market abuse8.

[Note: article 31(1)8 of MiFID]

MAR 5.6 Reporting requirements

MAR 5.6.1 R RP

1A firm2 must:

  1. (1)

    report to the FCA any2:

    1. (a)

      significant breaches of the firm's rules;

    2. (b)

      disorderly trading conditions;2

    3. (c)

      conduct that may involve market abuse; and2

    4. (d)

      system disruptions in relation to a financial instrument;2

  2. (2)

    supply the information required under this rule without delay to the FCA and any other authority competent for the investigation and prosecution of market abuse; and2

  3. (3)

    provide full assistance to the FCA, and any other authority competent for the investigation and prosecution of market abuse2, in its investigation and prosecution of market abuse2 occurring on or through the firm's systems.

[Note: article 31(2)2 of MiFID and articles 81 and 82 of the MiFID Org Regulation2

MAR 5.6.2 R RP

3A firm operating an MTF must give the FCA a summary of:

  1. (1)

    any proposal to introduce, amend or renew a scheme for rebating or waiving fees or charges levied on its members or participants (or any group or class of them), at the same time as the proposal is communicated to those members or participants; and

  2. (2)

    any such change, no later than the date when it is published or notified to the members or participants.

MAR 5.6.3 R

3The summary referred to in MAR 5.6.2R(1) must be given in the form specified in MAR 5 Annex 2R.

MAR 5.6A Suspension and removal of financial instruments

MAR 5.6A.1 R RP

1A firm must:

  1. (1)

    not exercise any power under its rules to suspend or remove from trading any financial instrument which no longer complies with its rules, where such a step would be likely to cause significant damage to the interest of investors or the orderly functioning of the trading venue;

  2. (2)

    where it does suspend or remove from trading a financial instrument, also suspend or remove derivatives that relate, or are referenced, to that financial instrument, where necessary to support the objectives of the suspension or removal of the underlying; and

  3. (3)

    make public any decision in (2) and notify the FCA of it.

[Note: article 32 of MiFID, article 80 of the MiFID Org Regulation, MiFID RTS 18 and MiFID ITS 2]

MAR 5.7 Pre- and post-trade transparency requirements for equity and non- equity instruments: form of waiver and deferral

MAR 5.7.1 R

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MAR 5.7.1A D RP

4A firm that makes an application to the FCA for a waiver in accordance with articles 4 or 9 of MiFIR (in relation to pre-trade transparency for equity or non-equity instruments) must make it in the form set out in MAR 5 Annex 1D.

[Note: articles 4 and 9 of MiFIR, MiFID RTS 1 and MiFID RTS 2]

MAR 5.7.1B G RP

4According to article 4(7) of MiFIR, waivers granted by competent authorities in accordance with articles 29(2) and 44(2) of Directive 2004/39/EC and articles 18, 19 and 20 of Regulation (EC) No 1287/2006 before 3 January 2018 shall be reviewed by ESMA by 3 January 2020. ESMA shall issue an opinion to the competent authority, assessing the continued compatibility of those waivers with the requirements established in MiFIR and any regulations made pursuant to it. The FCA will cooperate with ESMA in relation to the continued effect of existing waivers.

MAR 5.7.1C D RP

4A firm intending to apply to the FCA for deferral in accordance with articles 7 or 11 of MiFIR in relation to post-trade transparency for equity or non-equity instruments must apply in writing to the FCA.

[Note: articles 7 and 11 of MiFIR, MiFID RTS 1 and MiFID RTS 2]

MAR 5.7.1D G RP

4A firm should have regard to the urgency and significance of a matter and, if appropriate, should also notify its usual supervisory contact at the FCA by telephone or by other prompt means of communication, before submitting a written application. Oral notifications should be given directly to the firm’s usual supervisory contact at the FCA. An oral notification left with another person or on a voicemail or other automatic messaging service is unlikely to have been given appropriately.

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MAR 5.8 Provisions common to pre- and post-trade transparency requirements for shares [deleted]

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MAR 5.9 Post-trade transparency requirements for shares [deleted]

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MAR 5.10 Operation of an SME growth market

Registering an MTF as an SME growth market

MAR 5.10.1 R RP

1A firm may apply to the FCA to have an MTF registered as an SME growth market.

[Note: article 33(1) of MiFID]

MAR 5.10.2 R RP

For an MTF to be eligible for registration as an SME growth market, the firm must have effective rules, systems and procedures which ensure that:

  1. (1)

    at least 50% of the issuers whose financial instruments are admitted to trading on the MTF are small and medium-sized enterprises at the time when the MTF is registered as an SME growth market, and in any calendar year thereafter;

  2. (2)

    appropriate criteria are set for initial and ongoing admission to trading of financial instruments of issuers on the market;

  3. (3)

    on initial admission to trading of financial instruments on the market, there is sufficient information to enable investors to make an informed judgement about whether or not to invest in the financial instruments published in either:

    1. (a)

      an appropriate admission document; or

    2. (b)

      a prospectus, if the Prospectus Directive is applicable in respect of a public offer being made in conjunction with the initial admission to trading of the financial instrument on the MTF;

  4. (4)

    there is appropriate ongoing periodic financial reporting by, or on behalf of, an issuer on the market, for example through audited annual reports;

  5. (5)

    the following comply with the Market Abuse Regulation as applicable to each of them:

    1. (a)

      issuers on the market as defined in point (21) of article 3(1) of the Market Abuse Regulation;

    2. (b)

      persons discharging managerial responsibilities as defined in point (25) of article 3(1); and

    3. (c)

      persons closely associated with them as defined in point (26) of article 3(1);

  6. (6)

    regulatory information concerning the issuers on the market is stored and disseminated to the public; and

  7. (7)

    there are effective systems and controls aiming to prevent and detect market abuse on that market as required under the Market Abuse Regulation.

[Note: articles 33(2) and 33(3) of MiFID]

The contents of an application for registration as an SME growth market

MAR 5.10.3 G RP

The requirements specified in MAR 5.10.2R:

  1. (1)

    are subject to the provisions of the MiFID Org Regulation, further specifying the requirements laid down in article 33(3) of MiFID; and

  2. (2)

    do not detract from other obligations relevant to an MTF under this chapter, but a firm may impose additional requirements to those specified in MAR 5.10.2R.

[Note: articles 33(4) and 33(8) of MiFID, and articles 78 and 79 of the MiFID Org Regulation]

MAR 5.10.4 G RP
  1. (1)

    The FCA expects an application for registration as an SME growth market to be accompanied by:

    1. (a)

      a copy of the rules, systems and procedures supporting the applicant’s compliance with the requirements specified in MAR 5.10.2R; and

    2. (b)

      such other information as the FCA may reasonably require to determine the application in accordance with MAR 5.10.2R and MAR 5.10.3R.

  2. (2)

    A firm intending to apply for registration as an SME growth market may wish to contact the Infrastructure and Trading Firms Department at the FCA for further advice on the preparation, timing and practical aspects of an application to register.

MAR 5.10.5 R RP
  1. (1)

    Where a financial instrument of an issuer is admitted to trading on one SME growth market, the financial instrument must not be traded on another SME growth market unless the issuer has been informed and has not objected.

  2. (2)

    In the case of (1), the issuer shall not be subject to any obligation relating to corporate governance or initial, ongoing or ad hoc disclosure with regard to the latter SME growth market.

[Note: article 33(7) of MiFID]

MAR 5.10.6 G RP

The issuer of the financial instrument referred to in MAR 5.10.5R should be informed by notice in writing that another SME growth market wishes to admit the instrument to trading, and should generally be given no less than 28 days to object.

Deregistering an MTF as an SME growth market

MAR 5.10.7 R RP

An MTF registered as an SME growth market may be deregistered by the FCA in the following cases:

  1. (1)

    the firm operating the market applies for its deregistration; or

  2. (2)

    the requirements in MAR 5.10.2R are (subject to MAR 5.10.3G(1)) no longer complied with.

[Note: article 33(5) of MiFID and article 79 of the MiFID Org Regulation]

MAR 5 Annex 2 Form for reporting incentive scheme proposals (MAR 5.6.3R(1))

Annex 2 R

1 Annex 1 – Incentive Schemes (MAR 5.6.3R)

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