“…issues persist, and some firms are not paying sufficient attention to our warnings on the importance of reporting transactions to us in a complete, accurate and timely manner.”

In the week commencing 24th July 2023 the UK Financial Conduct Authority (“FCA”) published two important updates concerning Markets in Financial Instrument Regulation (“MiFIR”) transaction reporting in quick succession. These were:

• Market Watch 74 (“MW 74”); and
• a statement detailing areas of transaction reporting regime where the FCA is exercising supervisory flexibility.  

The purpose of this note is to summarise these updates for the benefit of busy professionals. 

Is your firm making regular data extract requests from the MDP Entity Portal? 

Although the FCA reports that the number of firms making data extract requests has steadily increased since 2018, it states that it has been identifying and contacting firms that have not been doing this. The FCA says that some firms:

• were not aware that MDP exists; or
• had been using extracts provided by their Approved Reporting Mechanisms (“ARMs”) to conduct reconciliations. 

The FCA remined firms that they: “are required to reconcile front-office records with data samples provided by the FCA under Article 15(3) of RTS 22.”

Has your firm discovered errors and omissions that occurred more than five years ago?

The FCA has stressed that firms should still include information about historic issues in errors and omissions notifications. However, the regulator also said that it does not expect firms to cancel transaction reports that pertain to a trade date that is five years older than the submission date. 

Is your firm identifying investment and execution decision makers with sufficient granularity?

The FCA has identified practices where firms have nominated a head of desk, head of trading or other senior manager as being responsible for investment and execution decisions. In the FCA’s view this is unlikely to be granular enough. It reiterated that firms have to establish criteria for determining who is responsible for investment and execution decisions, particularly in situations where one or more person or algorithm is involved in making them. 

Is your firm receiving and transmitting orders? If so, is it submitting transaction reports or confident that the receiving firm has agreed to take responsibility for submitting them instead?

The FCA says that it has been contacting transmitting firms who have not been submitting transaction reports. In response, some of those transmitting firms asserted that receiving firms had agreed to take sole responsibility for submitting transaction reports. The FCA then made follow up enquiries with those receiving firms, some of which denied that a transmitting agreement had been put in place with the transmitting firms pursuant to Article 26(4) of UK MiFIR and Article 4(1)(c) of Regulatory Technical Standard (“RTS”) 22. Where no transmitting agreement has been put in place the transmitting firms remain fully responsible for conducting their own MiFIR reporting. This is because, without an agreement, it is unlikely that a receiving firm would have all the information it would need to submit a report that accurately reflects the transmitting firm’s activities. Accordingly, the FCA has challenged transmitting and receiving firms to evidence their compliance with Article 26(4) of UK MiFIR and Article 4 of RTS 22. 

How do we populate field 36 (venue) and TVTIC when reporting transactions that have been negotiated off exchange and brought under the rules of a trading venue?

The FCA provides clarification that, in these cases:

• firms are expected to report the market identifier code (“MIC”) of the trading venue; and
• the trading venue transaction identification code (“TVTIC”) is optional. 

Are we expected to “look through” a chain of intermediaries in situations other than transmission?

The FCA states that it does not expect firms to do this. The regulator provides the following examples of common misidentifications:

• reporting funds as buyer and seller when dealing with a fund manager; and
• putting a subsidiary’s client as buyer or seller in intra-group transactions. 

Does your firm report spread trades in a manner consistent with the ESMA transaction reporting guidelines?

Regulators have observed instances where individual prices are being reported in each transaction report making up a complex trade. This is inconsistent with example 117 in ESMA’s guidelines which state that a single price must be populated in field 33 for complex trades. 

Is your firm following market convention when deciding which price and quantity notations to use?

The FCA has urged firms to ensure that the notations they are using are consistent with those of their counterparties. One firm should not report a monetary price and the other a basis point price, as an example.

Common instrument reporting (fields 42-56) pitfalls 

The regulator is keen for firms to avoid making the following instrument reporting mistakes:

• the use of price multipliers which do not correspond to an accurate number of underlying instruments for derivative transactions, particularly contract for differences (“CFDs”); 
• unreported expiry dates;
• default expiry dates;
• expiry dates preceding the trade date of the transaction; and
• classification of financial instrument (“CFI”) codes which are inconsistent with the instrument name or other details.

Is your firm a trading venue or systematic internaliser? If so, are you submitting instrument reference data late to the FCA?

Trading venues and systematic internalisers (“SIs”) must submit instrument reference data to the FCA:

• by 21.00 CET on each day they are open for trading; 
• for all financial instruments admitted to trading, or that are traded on their platforms, before 18:00 CET on that day.

In MW74 the FCA stated that some trading venues and SI are not meeting these deadlines, something which has a knock on effect on investment firms’ ability to submit transaction reports in respect of their activities on those trading venues and SIs. 

The FCA expects trading venues and SIs to:

• have systems and controls in place to detect late reporting; and
• report any instances of late reporting to: mrt@fca.org.uk 

Is your firm a trading venue? If so, have you been erroneously submitting instrument reference data to the FCA for spot FX instruments?

If the answer to both of these questions is “yes” then your firm should:

• stop doing this; and
• cancel the instrument reference data that has been sent to the FCA in error. 

This is because spot FX is not a financial instrument. Only financial instruments are caught by the UK Markets in Financial Instrument Directive (“MiFID”) and MiFIR regimes. 

Temporary relief for the non-population of certain fields

On 27th July 2023 the FCA announced that it would not take action against firms that decide not to populate the following fields:

• waiver indicator (field 61); 
• OTC post-trade indicator (field 63); 
• commodity derivative indicator (field 64); and
• securities financing transaction indicator. 

In addition:

• firms do not need to send errors and omissions reports in the event they discover issues concerning the population of the abovementioned fields; 
• the validation rules pertaining to these fields will be switched off from September 2023 to prevent the rejection of transaction reports if they are not populated; and
• the UK MiFIR transaction reporting schema will be updated to enable reporting of all alphanumeric values in fields 61 and 63 (per above). This is to allow firms to send the new reporting flags introduced in PS23/4. 

The FCA has granted this relief because it is currently reviewing these fields. 

Need help?

C&G’s consultants have extensive experience of implementing regulatory reporting requirements in investment firms. C&G also acts as an introducer to a specialist regtech firm that offers state of the art solutions to help minimise the costs and operational burdens associated with regulatory reporting. Please contact us if you would like more information regarding how we can help. 

References

2023. Market Watch 74. Financial Conduct Authority, available at: https://www.fca.org.uk/publications/newsletters/market-watch-74 (last accessed 28th July 2023).
2024. Supervisory flexibility on transaction reporting. Financial Conduct Authority, available at: https://www.fca.org.uk/news/statements/supervisory-flexibility-transaction-reporting (last accessed 28th July 2023).