Commission Delegated Regulation (EU) 2017/567Show full title

CHAPTER V U.K. SUPERVISORY MEASURES ON PRODUCT INTERVENTION AND POSITION MANAGEMENT

SECTION 1 U.K. Product intervention

Article 19 U.K. Criteria and factors for the purposes of ESMA temporary product intervention powers(Article 40(2) of Regulation (EU) No 600/2014)

1. For the purposes of Article 40(2)(a) of Regulation (EU) No 600/2014, ESMA shall assess the relevance of all factors and criteria listed in paragraph 2, and take into consideration all relevant factors and criteria in determining when the marketing, distribution or sale of certain financial instruments or financial instruments with certain specified features or a type of financial activity or practice creates a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or commodity markets or to the stability of the whole or part of the financial system of the Union.

For the purposes of the first subparagraph, ESMA may determine the existence of a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or commodity markets or to the stability of the whole or part of the financial system of the Union based on one or more of those factors and criteria.

2. The factors and criteria to be assessed by ESMA to determine whether there is a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or commodity markets or to the stability of the whole or part of the financial system of the Union shall be the following:

(a) the degree of complexity of the financial instrument or type of financial activity or practice in relation to the type of clients, as assessed in accordance with point (c), involved in the financial activity or financial practice, or to whom the financial instrument is marketed or sold, taking into account, in particular:

• (a) the type of the underlying or reference assets and the degree of transparency of the underlying or reference assets;

• the degree of transparency of costs and charges associated with the financial instrument, financial activity or financial practice and, in particular, the lack of transparency resulting from multiple layers of costs and charges;

• the complexity of the performance calculation, taking into account in particular whether the return is dependent on the performance of one or more underlying or reference assets which are in turn affected by other factors or whether the return depends not only on the values of the underlying or reference assets at the initial and maturity dates, but also on the values during the lifetime of the product;

• the nature and scale of any risks;

• whether the instrument or service is bundled with other products or services; or

• the complexity of any terms and conditions;

(b) the size of potential detrimental consequences, considering in particular:

• (b) the notional value of the financial instrument;

• the number of clients, investors or market participants involved;

• the relative share of the product in investors' portfolios;

• the probability, scale and nature of any detriment, including the amount of loss potentially suffered;

• the anticipated duration of the detrimental consequences;

• the volume of the issuance;

• the number of intermediaries involved;

• the growth of the market or sales; or

• the average amount invested by each client in the financial instrument;

(c) the type of clients involved in a financial activity or financial practice or to whom a financial instrument is marketed or sold, taking into account, in particular:

• (c) whether the client is a retail client, a professional client or an eligible counterparty;

• clients' skills and abilities, including the level of education, experience with similar financial instruments or selling practices;

• clients' economic situation, including their income and wealth;

• clients' core financial objectives, including pension saving and home ownership financing; or

• whether the instrument or service is being sold to clients outside the intended target market or whether the target market has not been adequately identified;

(d) the degree of transparency of the financial instrument or type of financial activity or practice, taking into account, in particular:

• (d) the type and transparency of the underlying;

• any hidden costs and charges;

• the use of techniques drawing clients' attention but not necessarily reflecting the suitability or overall quality of the financial instrument, financial activity or financial practice;

• the nature of risks and transparency of risks; or

• the use of product names or terminology or other information that imply a greater level of security or return than those which are actually possible or likely, or which imply product features that do not exist;

(e) the particular features or components of the financial instrument, financial activity or financial practice, including any embedded leverage, taking into account, in particular:

• (e) the leverage inherent in the product;

• the leverage due to financing;

• the features of securities financing transactions; or

• the fact that the value of any underlying is no longer available or reliable;

(f) the existence and degree of disparity between the expected return or profit for investors and the risk of loss in relation to the financial instrument, financial activity or financial practice, taking into account, in particular:

• (f) the structuring costs of such financial instrument, activity or practice and other costs;

• the disparity in relation to the issuer's risk retained by the issuer; or

• the risk/return profile;

(g) the ease and cost with which investors are able to sell the relevant financial instrument or switch to another financial instrument, taking into account, in particular:

• (g) the bid/ask spread;

• the frequency of trading availability;

• the issuance size and size of the secondary market;

• the presence or absence of liquidity providers or secondary market makers;

• the features of the trading system; or

• any other barriers to exit;

(h) the pricing and associated costs of the financial instrument, financial activity or financial practice, taking into account, in particular:

• (h) the use of hidden or secondary charges; or

• charges that do not reflect the level of service provided;

(i) the degree of innovation of a financial instrument, a financial activity or a financial practice, taking into account, in particular:

• (i) the degree of innovation related to the structure of the financial instrument, financial activity or financial practice, including embedding and triggering;

• the degree of innovation relating to the distribution model or length of the intermediation chain;

• the extent of innovation diffusion, including whether the financial instrument, financial activity or financial practice is innovative for particular categories of clients;

• innovation involving leverage;

• the lack of transparency of the underlying; or

• the past experience of the market with similar financial instruments or selling practices;

(j) the selling practices associated with the financial instrument, taking into account, in particular:

• (j) the communication and distribution channels used;

• the information, marketing or other promotional material associated with the investment;

• the assumed investment purposes; or

• whether the decision to buy is secondary or tertiary following an earlier purchase;

(k) the financial and business situation of the issuer of a financial instrument, taking into account, in particular:

• (k) the financial situation of the issuer or any guarantor; or

• the transparency of business situation of the issuer or guarantor;

(l) whether there is insufficient, or unreliable, information about a financial instrument, provided either by the manufacturer or the distributors, to enable market participants at whom it is targeted to make an informed decision, taking into account the nature and type of the financial instrument;

(m) whether the financial instrument, financial activity or financial practice poses a high risk to the performance of transactions entered into by participants or investors in the relevant market;

(n) whether the financial activity or financial practice would significantly compromise the integrity of the price formation process in the market concerned, such that the price or value of the financial instrument in question is no longer determined according to legitimate market forces of supply and demand, or such that market participants are no longer able to rely on the prices formed in that market or in the volumes of trading as a basis for their investment decisions;

(o) whether the characteristics of a financial instrument make it particularly susceptible to being used for the purposes of financial crime and, in particular whether those characteristics could potentially encourage the use of the financial instrument for:

• (o) any fraud or dishonesty;

• misconduct in, or misuse of information in relation to a financial market;

• handling the proceeds of crime;

• the financing of terrorism; or

• facilitating money laundering;

(p) whether the financial activity or financial practice poses a particularly high risk to the resilience or smooth operation of markets and their infrastructure;

(q) whether a financial instrument, financial activity or financial practice could lead to a significant and artificial disparity between prices of a derivative and those in the underlying market;

(r) whether the financial instrument, financial activity or financial practice poses a high risk of disruption to financial institutions deemed to be important to the financial system of the Union;

(s) the relevance of the distribution of the financial instrument as a funding source for the issuer;

(t) whether a financial instrument, financial activity or financial practice poses particular risks to the market or payment systems infrastructure, including trading, clearing and settlement systems; or

(u) whether a financial instrument, financial activity or financial practice may threaten investors' confidence in the financial system.

Article 20 U.K. Criteria and factors for the purposes of EBA temporary product intervention powers(Article 41(2) of Regulation (EU) No 600/2014)

1. For the purposes of Article 41(2)(a) of Regulation (EU) No 600/2014, EBA shall assess the relevance of all factors and criteria listed in paragraph 2, and take into consideration all relevant factors and criteria in determining when the marketing, distribution or sale of certain structured deposits or structured deposits with certain specified features or a type of financial activity or practice creates a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union.

For the purposes of the first subparagraph, EBA may determine the existence of a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system of the Union based on one or more of those factors and criteria.

2. The factors and criteria to be assessed by EBA to determine whether there is a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union shall be the following:

(a) the degree of complexity of a structured deposit or type of financial activity or practice in relation to the type of clients, as assessed in accordance with point (c), involved in the financial activity, or financial practice, taking into account, in particular:

• (a) the type of the underlying or reference assets and the degree of transparency of the underlying or reference assets;

• the degree of transparency of costs and charges associated with the structured deposit, financial activity or financial practice and, in particular, the lack of transparency resulting from multiple layers of costs and charges;

• the complexity of the performance calculation, taking into account in particular whether the return is dependent on the performance of one or more underlying or reference assets which are in turn affected by other factors or whether the return depends not only on the values of the underlying or reference assets at the initial and maturity or interest payment dates, but also on the values during the lifetime of the product;

• the nature and scale of any risks;

• whether the structured deposit or service is bundled with other products or services; or

• the complexity of any terms and conditions;

(b) the size of potential detrimental consequences, considering, in particular:

• (b) the notional value of an issuance of structured deposits;

• the number of clients, investors or market participants involved;

• the relative share of the product in investors' portfolios;

• the probability, scale and nature of any detriment, including the amount of loss potentially suffered;

• the anticipated duration of the detrimental consequences;

• the volume of the issuance;

• the number of institutions involved;

• the growth of the market or sales;

• the average amount invested by each client in the structured deposit; or

• the coverage level defined in Directive 2014/49/EU of the European Parliament and of the Council(1);

(c) the type of clients involved in a financial activity or financial practice or to whom a structured deposit is marketed or sold, taking into account, in particular:

• (c) whether the client is a retail client, a professional client or an eligible counterparty;

• clients' skills and abilities, including level of education, experience with similar financial products or selling practices;

• clients' economic situation, including income, wealth;

• clients' core financial objectives, including pension saving, home ownership financing;

• whether the product or service is being sold to clients outside the intended target market or where the target market has not been adequately identified; or

• the eligibility for coverage by a deposit guarantee scheme;

(d) the degree of transparency of the structured deposit or type of financial activity or financial practice, taking into account, in particular:

• (d) the type and transparency of the underlying;

• any hidden costs and charges;

• the use of techniques drawing clients' attention but not necessarily reflecting the suitability or overall quality of the product or service;

• the type and transparency of risks;

• the use of product names or of terminology or other information that is misleading by implying product features that do not exist; or

• whether the identity of deposit takers which might be responsible for the client's deposit, is disclosed;

(e) the particular features or components of the structured deposit or financial activity or financial practice, including any embedded leverage, taking into account, in particular:

• (e) the leverage inherent in the product;

• the leverage due to financing; or

• the fact that the value of any underlying is no longer available or reliable;

(f) the existence and degree of disparity between the expected return or profit for investors and the risk of loss in relation to the structured deposit, financial activity or financial practice, taking into account, in particular:

• (f) the structuring costs of such structured deposits, activity or practice and other costs;

• the disparity in relation to the issuer's risk retained by the issuer; or

• the risk-return profile;

(g) the costs of and ease with which investors are able to exit a structured deposit, in particular considering:

• (g) the fact that early withdrawal is not allowed; or

• any other barriers to exit;

(h) the pricing and associated costs of the structured deposit, financial activity or financial practice, taking into account, in particular:

• (h) the use of hidden or secondary charges; or

• charges that do not reflect the level of service provided;

(i) the degree of innovation of a structured deposit, a financial activity or a financial practice, taking into account, in particular:

• (i) the degree of innovation related to the structure of the structured deposit, financial activity or financial practice, including embedding and triggering;

• the degree of innovation relating to the distribution model or length of the intermediation chain;

• the extent of innovation diffusion, including whether the structured deposit, financial activity or financial practice is innovative for particular categories of clients;

• innovation involving leverage;

• the lack of transparency of the underlying; or

• the past experience of the market with similar structured deposits or selling practices;

(j) the selling practices associated with the structured deposit, taking into account, in particular:

• (j) the communication and distribution channels used;

• the information, marketing or other promotional material associated with the investment;

• the assumed investment purposes; or

• whether the decision to buy is a secondary or tertiary following an earlier purchase;

(k) the financial and business situation of the issuer of a structured deposit, taking into account, in particular:

• (k) the financial situation of the issuer or any guarantor; or

• the transparency of the business situation of the issuer or guarantor;

(l) whether there is insufficient or unreliable information about a structured deposit, provided either by the manufacturer or the distributors, to enable market participants at whom it is targeted to make an informed decision, taking into account the nature and type of the structured deposit;

(m) whether the structured deposit, the financial activity or the financial practice poses a high risk to the performance of transactions entered into by participants or investors in the relevant market;

(n) whether the structured deposit, the financial activity or the financial practice would leave the Union economy vulnerable to risks;

(o) whether the characteristics of a structured deposit make it particularly susceptible to being used for the purposes of financial crime and, in particular whether those characteristics could potentially encourage the use of structured deposits for:

• (o) any fraud or dishonesty;

• misconduct in, or misuse of information, in relation to a financial market;

• handling the proceeds of crime;

• the financing of terrorism; or

• facilitating money laundering;

(p) whether the financial activity or financial practice poses a particularly high risk to the resilience or smooth operation of markets and their infrastructure;

(q) whether a structured deposit, a financial activity or a financial practice could lead to a significant and artificial disparity between prices of a derivative and those in the underlying market;

(r) whether the structured deposit, a financial activity or a financial practice poses a high risk of disruption to financial institutions deemed to be important to the financial system of the Union, in particular considering the hedging strategy pursued by financial institutions in relation to the issuance of the structured deposit, including the mispricing of the capital guarantee at maturity or the reputational risks posed by the structured deposit or practice or activity to the financial institutions;

(s) the relevance of the distribution of structured deposit as a funding source for the financial institution;

(t) whether a structured deposit, financial practice or financial activity poses particular risks to the market or payment systems infrastructure; or

(u) whether a structured deposit or financial practice or financial activity could threaten investors' confidence in the financial system.

Article 21 U.K. Criteria and factors to be taken into account by competent authorities for the purposes of product intervention powers(Article 42(2) of Regulation (EU) No 600/2014)

1. For the purposes of Article 42(2)(a) of Regulation (EU) No 600/2014, competent authorities shall assess the relevance of all factors and criteria listed in paragraph 2, and take into consideration all relevant factors and criteria in determining when the marketing, distribution or sale of certain financial instruments or structured deposits or financial instruments or structured deposits with certain specified features or a type of financial activity or practice creates a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or commodity markets or to the stability of the whole or part of the financial system within at least one Member State.

For the purposes of the first subparagraph, competent authorities may determine the existence of a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or commodity markets or to the stability of the whole or part of the financial system within at least one Member State based on one or more of those factors and criteria.

2. The factors and criteria to be assessed by competent authorities to determine whether there is a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or commodity markets or to the stability of the whole or part of the financial system within at least one Member State shall include the following:

(a) the degree of complexity of the financial instrument or type of financial activity or practice in relation to the type of clients, as assessed in accordance with point (c), involved in the financial activity or financial practice, or to whom the financial instrument or structured deposit is marketed or sold, taking into account, in particular:

• (a) the type of the underlying or reference assets and the degree of transparency of the underlying or reference assets;

• the degree of transparency of costs and charges associated with the financial instrument, structured deposit, financial activity or financial practice, and, in particular, the lack of transparency resulting from multiple layers of costs and charges;

• the complexity of the performance calculation, taking into account whether the return is dependent on the performance of one or more underlying or reference assets which are in turn affected by other factors or whether the return depends not only on the values of the underlying or reference assets at the initial and maturity dates, but also on the values during the lifetime of the product;

• the nature and scale of any risks;

• whether the product or service is bundled with other products or services;

• the complexity of any terms and conditions;

(b) the size of potential detrimental consequences, considering in particular:

• (b) the notional value of the financial instrument or of an issuance of structured deposits;

• the number of clients, investors or market participants involved;

• the relative share of the product in investors' portfolios;

• the probability, scale and nature of any detriment, including the amount of loss potentially suffered;

• the anticipated duration of the detrimental consequences;

• the volume of the issuance;

• the number of intermediaries involved;

• the growth of the market or sales;

• the average amount invested by each client in the financial instrument or structured deposit; or

• the coverage level defined in Directive 2014/49/EU, in the case of structured deposits;

(c) the type of clients involved in a financial activity or financial practice or to whom a financial instrument or structured deposit is marketed or sold, taking into account, in particular:

• (c) whether the client is a retail client, a professional client or an eligible counterparty;

• clients' skills and abilities, including the level of education, experience with similar financial instruments or structured deposits or selling practices;

• clients' economic situation, including their income, and wealth;

• clients' core financial objectives, including pension saving and home ownership financing;

• whether the product or service is being sold to clients outside the intended target market or where the target market has not been adequately identified; or

• the eligibility for coverage by a deposit guarantee scheme, in the case of structured deposits;

(d) the degree of transparency of the financial instrument, structured deposit or type of financial activity or practice, taking into account, in particular:

• (d) the type and transparency of the underlying;

• any hidden costs and charges;

• the use of techniques drawing clients' attention but not necessarily reflecting the suitability or overall quality of the product, the financial activity or the financial practice;

• the nature of risks and transparency of risks;

• the use of product names or terminology or other information that is misleading by implying a greater level of security or return than those which are actually possible or likely, or which imply product features that do not exist; or

• in case of structured deposits, whether the identity of deposit takers which might be responsible for the client's deposit, is disclosed;

(e) the particular features or components of the structured deposit, financial instrument, financial activity or financial practice, including any embedded leverage, taking into account, in particular:

• (e) the leverage inherent in the product;

• the leverage due to financing;

• the features of securities financing transactions; or

• the fact that the value of any underlying is no longer available or reliable;

(f) the existence and degree of disparity between the expected return or profit for investors and the risk of loss in relation to the financial instrument, structured deposit, financial activity or financial practice, taking into account, in particular:

• (f) the structuring costs of such financial instrument, structured deposit, financial activity or financial practice and other costs;

• the disparity in relation to the issuer's risk retained by the issuer; or

• the risk-return profile;

(g) the costs and ease with which investors are able to sell the relevant financial instrument or switch to another financial instrument, or exit a structured deposit, taking into account, in particular, where applicable depending on whether the product is a financial instrument or structured deposit:

• (g) the bid-ask spread;

• the frequency of trading availability;

• the issuance size and size of the secondary market;

• the presence or absence of liquidity providers or secondary market makers;

• the features of the trading system; or

• any other barriers to exit or the fact that early withdrawal is not allowed;

(h) the pricing and associated costs of the structured deposit, financial instrument, financial activity or financial practice, taking into account, in particular:

• (h) the use of hidden or secondary charges; or

• charges that do not reflect the level of service provided;

(i) the degree of innovation of a financial instrument or structured deposit, a financial activity or financial practice, taking into account, in particular:

• (i) the degree of innovation related to the structure of the financial instrument, structured deposit, financial activity or financial practice, including embedding and triggering;

• the degree of innovation relating to the distribution model or length of the intermediation chain;

• the extent of innovation diffusion, including whether the financial instrument, structured deposit, financial activity or financial practice is innovative for particular categories of clients;

• innovation involving leverage;

• the lack of transparency of the underlying; or

• the past experience of the market with similar financial instruments, structured deposits or selling practices;

(j) the selling practices associated with the financial instrument or structured deposit, taking into account, in particular:

• (j) the communication and distribution channels used;

• the information, marketing or other promotional material associated with the investment;

• the assumed investment purposes; or

• whether the decision to buy is secondary or tertiary decision following an earlier purchase;

(k) the financial and business situation of the issuer of a financial instrument or structured deposit, taking into account, in particular:

• (k) the financial situation of the issuer or any guarantor; or

• the transparency of the business situation of the issuer or guarantor;

(l) whether there is insufficient, or unreliable, information about a financial instrument or structured deposit, provided either by the manufacturer or the distributors, to enable market participants at whom it is targeted to make an informed decision, taking into account the nature and type of the financial instrument or the structured deposit;

(m) whether the financial instrument, structured deposit, financial activity or financial practice poses a high risk to the performance of transactions entered into by participants or investors in the relevant market;

(n) whether the financial activity or financial practice would significantly compromise the integrity of the price formation process in the market concerned such that the price or value of the financial instrument or structured deposit in question is no longer determined according to legitimate market forces of supply and demand, or such that market participants are no longer able to rely on the prices formed in that market or in the volumes of trading as a basis for their investment decisions;

(o) whether a financial instrument, structured deposit, financial activity or practice would leave the national economy vulnerable to risks;

(p) whether the characteristics of a financial instrument or structured deposit make it particularly susceptible to being used for the purposes of financial crime and, in particular whether the characteristics could potentially encourage the use of the financial instrument or structured deposit for:

• (p) any fraud or dishonesty;

• misconduct in, or misuse of information, in relation to a financial market;

• handling the proceeds of crime;

• the financing of terrorism; or

• facilitating money laundering;

(q) whether a financial activity or a financial practice poses a particularly high risk to the resilience or smooth operation of markets and their infrastructure;

(r) whether a financial instrument, structured deposit, financial activity or financial practice could lead to a significant and artificial disparity between prices of a derivative and those in the underlying market;

(s) whether the financial instrument, structured deposit, financial activity or financial practice poses a high risk of disruption to financial institutions deemed to be important to the financial system of the Member State of the relevant competent authority, in particular considering the hedging strategy pursued by financial institutions in relation to the issuance of the structured deposit, including the mispricing of the capital guarantee at maturity or the reputational risks posed by the structured deposit or practice or activity to the financial institutions;

(t) the relevance of the distribution of the financial instrument or structured deposit as a funding source for the issuer or financial institutions;

(u) whether a financial instrument, structured deposit, financial activity or financial practice poses particular risks to the market or payment systems infrastructure, including trading, clearing and settlement systems; or

(v) whether a financial instrument, structured deposit, financial activity or financial practice would threaten investors' confidence in the financial system.

SECTION 2 U.K. Position management powers

Article 22 U.K. Position management powers of ESMA(Article 45 of Regulation (EU) No 600/2014)

1. For the purposes of Article 45(2)(a) of Regulation (EU) No 600/2014, the criteria and factors determining the existence of a threat to the orderly functioning and integrity of financial markets, including commodity derivative markets in accordance with the objectives listed in Article 57(1) of Directive 2014/65/EU and in relation to delivery arrangements for physical commodities, or to the stability of the whole or part of the financial system in the Union shall be the following:

(a) the existence of serious financial, monetary or budgetary problems which could lead to the financial instability of a Member State or a financial institution deemed important to the global financial system, including credit institutions, insurance companies, market infrastructure providers and asset management companies operating within the Union, provided that these problems could threaten the orderly functioning and integrity of financial markets or the stability of the financial system within the Union;

(b) a rating action or a default by a Member State or a credit institution or other financial institution deemed important to the global financial system, such as insurance companies, market infrastructure providers and asset management companies operating within the Union, that causes or may reasonably be expected to cause severe uncertainty about their solvency;

(c) substantial selling pressures or unusual volatility causing significant downward spirals in any financial instrument related to any credit institution or other financial institutions deemed important to the global financial system, such as insurance companies, market infrastructure providers and asset management companies operating within the Union and sovereign issuers;

(d) any damage to the physical structures of important financial issuers, market infrastructures, clearing and settlement systems or competent authorities which may adversely and significantly affect markets in particular where such damage results from a natural disaster or a terrorist attack;

(e) a disruption in any payment system or settlement process, in particular where it is related to interbank operations, which causes or may cause significant payments or settlement failures or delays within the Union payment systems, especially when these may lead to the propagation of financial or economic stress in a credit institution or other financial institutions deemed important to the global financial system, such as insurance companies, market infrastructure providers and asset management companies or in a Member State;

(f) a significant and abrupt decrease in the supply of a commodity or an increase in the demand of a commodity, which disrupts the supply and demand balance;

(g) a significant position in a certain commodity held by one person, or by several persons acting in concert, in one or several trading venues, through one or several market members;

(h) an inability of a trading venue to exercise its own position management powers due to a business continuity event.

2. For the purposes of Article 45(1)(b) of Regulation (EU) No 600/2014 the criteria and factors determining the appropriate reduction of a position or exposure shall be the following:

(a) the nature of the holder of the position, including producers, consumers or financial institution;

(b) the maturity of the financial instrument;

(c) the size of the position relative to the size of the relevant commodity derivative market;

(d) the size of the position relative to the size of the market for the underlying commodity;

(e) the direction of the position (short or long) and delta or ranges of delta;

(f) the purpose of the position, in particular whether the position serves hedging purposes or whether it is held for financial exposure;

(g) the experience of a position holder in holding positions of a given size, or in making or taking delivery of a given commodity;

(h) the other positions held by the person in the underlying market or in different maturities of the same derivative;

(i) the liquidity of the market and the impact of the measure on other market participants;

(j) the method of delivery.

3. For the purposes of Article 45(3)(b) of Regulation (EU) No 600/2014, the criteria specifying the situations where a risk of regulatory arbitrage may arise shall be the following:

(a) whether the same contract is traded in a different trading venue or OTC;

(b) whether a substantially equivalent contract is traded on a different venue or OTC (similar and interrelated, but not considered part of the same fungible open interest);

(c) the effects of the decision on the market of the underlying commodity;

(d) the effects of the decision on markets and participants not subject to ESMA's position management powers; and

(e) the likely effect on the orderly functioning and integrity of the markets absent ESMA action.

4. For the purposes of Article 45(2)(b) of Regulation (EU) No 600/2014, ESMA shall apply the criteria and factors set out in paragraph 1 of this Article taking into account whether the envisaged measure responds to a failure to act by a competent authority or to an additional risk which the competent authority is not able to sufficiently address pursuant to Article 69(2)(j) or (o) of Directive 2014/65/EU.

For the purposes of the first subparagraph, a competent authority shall be considered as failing to act where, based on the powers conferred to it, it has at its disposal sufficient regulatory powers to fully address the threat at the time of the event without the assistance of any other competent authority, but fails to take such action.

A competent authority shall be considered as being unable to sufficiently address a threat where one or more of the factors referred to in Article 45(10)(a) of Regulation (EU) No 600/2014 occur within the jurisdiction of a competent authority and in one or more additional jurisdictions.

(1)

Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (OJ L 173, 12.6.2014, p. 149).