Point (1) of Article 3(1) of the MAR in conjunction with point (15) of Article 4(1) and Annex I Section C of Directive (EU) 2014/65 (MiFID II)¹, contain a list of those financial instruments that fall within the scope of the MAR.

They include:

1. transferable securities,
2. money-market instruments,
3. units in collective investment undertakings,
4. options, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies, interest rates or yields, emission allowances or other derivatives instruments, financial indices or financial measures which may be settled physically or in cash,
5. options, futures, swaps, forwards and any other derivative contracts relating to commodities that must be settled in cash or may be settled in cash at the option of one of the parties other than by reason of default or other termination event,
6. options, futures, swaps, and any other derivative contract relating to commodities that can be physically settled provided that they are traded on a regulated market, an MTF or an OTF², except for wholesale energy products traded on an OTF that must be physically settled,
7. options, futures, swaps, forwards and any other derivative contracts relating to commodities, that can be physically settled not otherwise mentioned in point 6 of this Section and not being for commercial purposes, which have the characteristics of other derivative financial instruments,
8. derivative instruments for the transfer of credit risk,
9. financial contracts for differences,
10. options, futures, swaps, forward rate agreements and any other derivative contracts relating to climatic variables, freight rates or inflation rates or other official economic statistics that must be settled in cash or may be settled in cash at the option of one of the parties other than by reason of default or other termination event, as well as any other derivative contracts relating to assets, rights, obligations, indices and measures not otherwise mentioned in this Section C, which have the characteristics of other derivative financial instruments, having regard to whether, inter alia, they are traded on a regulated market, OTF or an MTF,
11. Emission allowances consisting of any units recognised for compliance with the requirements of Directive 2003/87/EC (Emissions Trading Scheme).

Units in collective investment undertakings include units within the meaning of both the UCITS Directive (Directive 2009/65/EC)³ and the AIFM Directive (Directive 2011/61/EU)⁴. Investment fund units are therefore also financial instruments within the meaning of point (1) of Article 3(1) of the MAR.

The term “commodity” also includes electricity. That means that electricity derivatives that are traded in Germany at the European Energy Exchange (EEX) constitute financial instruments and are thus subject to the prohibition of insider dealing under Article 14 of the MAR. The same applies to emission allowances.

Wholesale energy products that are traded on an OTF (e.g. the EEX OTF) and must be physically settled are not financial instruments within the meaning of the MAR (point (6) of Annex 1 Section C to MiFID II). They therefore do not fall within the scope of the MAR, but rather fall within the scope of Regulation (EU) No 1227/2011 (REMIT)⁵.

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