On the 6th May 2015, ESMA issued guidelines with a view to creating one consistent application of the definitions of commodity derivatives under MiFID, prior to the implementation of MiFID II in January 2017.
At present there is no such uniform application of definitions of derivatives in the EU, particularly so with respect to physically settled commodity forwards. As a result of such lack of uniformity, the application of EMIR is inconsistent, as it makes reference to the MiFID commodity derivatives definition, which is currently applied differently by each Member State.
The Guidelines attempt to define the meaning of “physically settled” and confirm that MiFID covers forwards traded on a regulated market or multilateral trading facility.
The Guidelines can be directly accessed here. They will apply from 7th August 2015, until the coming into force of MiFID II.