Will The ESMA Ban Binary Options

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Will The ESMA Ban Binary Options

Last December the ESMA, the European Securities and Markets Authority, shocked traders with news they were planning a blanket ban of all retail binary options trading. If they follow through with this and other proposed rules it could change the face of binary, forex and CFD trading forever.

Along with a ban of binary options the regulator is planning to cut leverage on forex and CFD products to only 20X for non-major pairs and 30X for major pairs. The consultation period ended early February resulting in a large number of negative responses from industry and traders. The consensus is the allow at least 50X leverage for experienced traders but there is no word yet on a final version of the new regulations.

Regulators throughout Europe are cracking down on binary and its not because binary options are bad. It’s because there is so much fraud based on binary options, so may scams that lead to binary options brokers and so many people who have been hurt by underhanded marketing gurus. One such trick is to use a UK based virtual office as an address, leading the public to believe the broker was regulated. The FCA has been cracking down on that and recently added new names to its black list. The FCA took over regulation of binary options at the beginning of the year when the MiFIDII came into effect.

Specifically, the FCA is warning about Plusoption, a brand known to operate under several different names. Redfield Markets, Tradeplus Solutions and ACV Operations SRL are only a few of the names known. The FCA warns the company is not regulated in any jurisdiction or registered with them.

Italy’s CONSOB still allows binary options trading, as does the UK FCA, but only with proper regulation and registration. The regulator has also added a number of new names to its list of unregulated brokers in its efforts to keep public awareness up to date. On the list are forex, CFD and binary options brokers as well as financial advisers and other services thought to be frauds.

Begian authorities at the FSMA are faced with a second wave of fraud related to binary options. This regulator has already banned binary options but its citizens are now being approached by firms claiming to recover lost money. For a small fee those who have been scammed are guaranteed a certain percentage will be returned. The FSMA warns that these boiler rooms are scams and that no one should give any money to people claiming to recover lost funds. Legitimate recovery firms will never ask for money up front.

Will the ESAM ban binary options? We aren’t sure but it looks likely. The takeaway for traders is that CFD’s will still be allowed which means lots of trading opportunities in the future. A probably a lot less scams although we’ll still have to deal with those too.

Will The ESMA Ban Binary Options

The European Securities and Markets Authority (ESMA) has agreed to renew the prohibition of the marketing, distribution or sale of binary options to retail clients, in effect since 2 July, from 2 October 2020 for a further three-month period. ESMA has also agreed on the exclusion of a limited number of products from the scope of the measure.

ESMA has carefully considered the need to extend the intervention measure currently in effect. ESMA considers that a significant investor protection concern related to the offer of binary options to retail clients continues to exist. It has therefore agreed to renew the prohibition from 2 October.

During its review of the intervention measure, ESMA considered the specific features of binary options currently within the scope of the measures. Certain binary options were found to have specific features which mitigate the risk of investor detriment, namely; they are sufficiently long-term (at least 90 days); are accompanied by a prospectus; and are fully hedged by the provider or another entity within the same group as the provider. ESMA considers that a binary option that benefits from the cumulative effect of these three criteria is less likely to lead to a significant investor protection concern.

In addition, products that at the end of the term have one of two predetermined pay-outs, neither of which is less than the initial investment of the client, will be excluded. The pay-out for this type of binary option could be the higher or lower one but in either circumstances the investor would not lose money compared to their total investment. As the investor’s capital is not at risk these products should be explicitly excluded.

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Hence, ESMA agreed to exclude from the scope of the renewal the following binary options:

  • a binary option for which the lower of the two predetermined fixed amounts is at least equal to the total payment made by a retail client for the binary option, including any commissions, transaction fees and other related costs; and
  • a binary option that meets cumulatively the following three (3) conditions:
    • (a) the term from issuance to maturity is at least ninety (90) calendar days;
    • (b) a prospectus drawn up and approved in accordance with the Prospectus Directive (2003/71/EC) is available to the public; and
    • (c) the binary option does not expose the provider to market risk throughout the term of the binary option and the provider or any of its group entities do not make a profit or loss from the binary option, other than previously disclosed commissions, transaction fees or other related charges.

ESMA will continue to keep these products under review during the prohibition period. The renewal was agreed by ESMA’s Board of Supervisors on 22 August 2020.

Next steps

ESMA intends to adopt the renewal measure in the official languages of the EU in the coming weeks, following which ESMA will publish an official notice on its website. The measure will then be published in the Official Journal of the EU and will start to apply from 2 October 2020 for a period of three months.

Will The ESMA Ban Binary Options

The European Securities and Markets Authority (ESMA) has agreed on measures on the provision of contracts for differences (CFDs) and binary options to retail investors in the European Union (EU).

The agreed measures include:

1. Binary Options – a prohibition on the marketing, distribution or sale of binary options to retail investors; and

2. Contracts for Differences – a restriction on the marketing, distribution or sale of CFDs to retail investors. This restriction consists of: leverage limits on opening positions; a margin close out rule on a per account basis; a negative balance protection on a per account basis; preventing the use of incentives by a CFD provider; and a firm specific risk warning delivered in a standardised way.

In accordance with MiFIR, ESMA can only introduce temporary intervention measures on a three monthly basis. Before the end of the three months, ESMA will consider the need to extend the intervention measures for a further three months.

Significant Investor Protection Concern

ESMA, along with National Competent Authorities (NCAs), concluded that there exists a significant investor protection concern in relation to CFDs and binary options offered to retail investors. This is due to their complexity and lack of transparency; the particular features of CFDs – excessive leverage – and binary options – structural expected negative return and embedded conflict of interest between providers and their clients; the disparity between the expected return and the risk of loss; and issues related to their marketing and distribution.

NCAs’ analyses on CFD trading across different EU jurisdictions shows that 74-89% of retail accounts typically lose money on their investments, with average losses per client ranging from €1,600 to €29,000. NCAs’ analyses for binary options also found consistent losses on retail clients’ accounts.

These measures were agreed by ESMA’s Board of Supervisors on 23 March 2020.

Steven Maijoor, Chair, said:

“The agreed measures ESMA is announcing today will guarantee greater investor protection across the EU by ensuring a common minimum level of protection for retail investors. The new measures on CFDs will for the first time ensure that investors cannot lose more money than they put in, restrict the use of leverage and incentives, and provide a risk warning for investors. For binary options, the prohibition we are announcing is needed to protect investors due to the products’ characteristics.

“The combination of the promise of high returns, easy-to-trade digital platforms, in an environment of historical low interest rates has created an offer that appeals to retail investors. However, the inherent complexity of the products and their excessive leverage – in the case of CFDs – has resulted in significant losses for retail investors.

“A pan-EU approach is required given the cross-border nature of these products, and ESMA’s intervention is the most appropriate and efficient tool to address this major investor protection issue.”

CFDs – agreed measures

The product intervention measures ESMA has agreed under Article 40 of the Markets in Financial Instruments Regulation include:

1. Leverage limits on the opening of a position by a retail client from 30:1 to 2:1, which vary according to the volatility of the underlying:

· 30:1 for major currency pairs;

· 20:1 for non-major currency pairs, gold and major indices;

· 10:1 for commodities other than gold and non-major equity indices;

· 5:1 for individual equities and other reference values;

· 2:1 for cryptocurrencies;

2. A margin close out rule on a per account basis. This will standardise the percentage of margin (at 50% of minimum required margin) at which providers are required to close out one or more retail client’s open CFDs;

3. Negative balance protection on a per account basis. This will provide an overall guaranteed limit on retail client losses;

4. A restriction on the incentives offered to trade CFDs; and

5. A standardised risk warning, including the percentage of losses on a CFD provider’s retail investor accounts.

Next steps

ESMA intends to adopt these measures in the official languages of the EU in the coming weeks, following which ESMA will publish an official notice on its website. The measures will then be published in the Official Journal of the EU (OJ) and will start to apply one month, for binary options, and two months, for CFDs, after their publication in the OJ.

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