Although implementation of MiFID II will now be delayed for a year to 2018, like a reliable and faithful hound, the FCA has fulfilled its promise and perceived obligation by publishing its first MiFID II Consultation Paper on time. With the FCA, you always know where you stand. It does what it says on the tin, and it expects others to do the same. Much of its time is spent tackling the failings of those who do not. When the industry fails to live up to their promise, it is taken to task. When the European Commission fails to live up to its promise, the industry is destabilised through uncertainty. Apart from a feeble jibe from the European Parliament, nobody takes the European Commission to task. That is the way of today’s world – it needs reform.

In among the turgid material of the CP lies one small nugget. Despite its previous gold-plating of MiFID, applying transaction reporting to managers of all portfolios, whether covered by MiFID or not, FCA has now decided that the continued cost of that application to anyone who is not expressly caught by the amended requirements set out in MiFIR cannot be justified. Many of us had understood for some years that transaction reports were a main-stay of the anti-market abuse regime, without which nailing criminals would be significantly hindered. It seems not. Now we know that the cost outweighs the benefit. A sensible regulator would only apply the regime where it was obliged to do so. What that says about the CBA carried out by the Commission when writing and re-writing MiFID, is an interesting question.

Whatever the glimpses of blue sky in the CP have to offer, few of the clouds in between are so dense or depressing as the description of the process for granting waivers for trade reporting. Before FCA can provide a single waiver, it must notify all other EU regulators, notify ESMA, provide an explanation of the waiver’s function and await ESMA’s opinion; and all of this four months before the waiver is implemented. CBA on that would make interesting reading indeed.

The astonishing dullness of CP15/43 is an unwelcome indicator of the absence of the key Level 2 material from the Commission. Still required to change the regulations by mid-2016, the FCA had no option but to start consulting now with only six months to go, despite knowing that the cards have not yet been fully dealt. The promised second consultation in H1 of the New Year will include more interesting material. But unless the timeframe changes, there will not be adequate time to consult and feedback properly, so the process and outcome are now compromised. Most people will think it bizarre that delay in implementation is contemplated without any certainty that transposition will also be delayed. Most would suppose that a Commission that was incapable of performing its part in the drama would have sufficient contrition and self-awareness to concede that its failures had a significant effect on an important industry and that every possible mitigating step should be taken to minimise the impact of its incompetence. Indeed most might. But then that would be to display a poor understanding of the character of EU institutions.