There is a sentence that turns up whenever a prediction market venue outside the European Union starts thinking about European users. We will not touch retail, we will serve professionals only, and European law has a third country regime for exactly that. The sentence is not wrong about the regime, it is wrong about the regime being available.
This site has written before that narrowing the audience to professionals does not remove the licence question, and that there is no European passport for a prediction market. Both leaned on a secondary source for the claim that the third country gate has never opened. That claim is now documented from the primary side, and the primary side carries something neither piece knew. The European Commission has adopted an equivalence decision covering the exact category of United States venue that lists event contracts, on 5 December 2017, and it does not let anyone in.
Three routes exist on paper and only one of them looks like a passport
Start with what European law offers a firm outside the Union. Article 46 of MiFIR, as published in ESMA's Interactive Single Rulebook, lets a third country firm provide investment services to eligible counterparties and professional clients anywhere in the Union without setting up a branch. That is the closest thing to a passport on offer. The catch sits in the second paragraph, which tells ESMA it may register such a firm only where several conditions are met, the first being that the Commission has adopted a decision under Article 47(1).
Article 48 then requires ESMA to keep that register publicly accessible, listing the services each firm may provide and the authority supervising it at home. The architecture is complete, and nothing about the design suggests it was meant to sit idle.
The second route is a branch. Article 47(3) says a third country firm authorised to run a branch under Article 39 of MiFID II can serve eligible counterparties and professional clients in other member states without opening new branches there. The third route is whatever each member state allows on its own account, which Article 46 permits precisely where no Commission decision under Article 47(1) has been adopted. Read those three together and the shape of the problem appears. Two are conditioned on the same decision, and the third exists because that decision is missing.
The Commission publishes its own list, and it has six entries
Until now this site said it could find no Article 47 decision. That is weaker than it needed to be, because the European Commission publishes the answer itself. Its page on equivalence of non EU financial services frameworks, last updated on 23 December 2025, links a per instrument list for each regime. The MiFIR one is titled List of Implementing and Delegated Acts for (EU) No 600/2014, and it carries a column for the legal basis of every act adopted under that regulation.
Checked on 4 November 2026, that list contains six acts. Three sit under Article 1(9) and all three concern the exemption of central banks from pre trade and post trade transparency, covering certain third country central banks in 2017 and adding the Bank of England and the People's Bank of China in 2019. The other three sit under Article 28(4). The legal basis column does not contain Article 47 once. The Commission's wider overview table of equivalence decisions, dated 1 January 2026, answers the same question across every regime at once.
So the register is not empty because ESMA is slow or because nobody applied. It is empty because the condition precedent has never been satisfied, for any jurisdiction, in twelve years.
An equivalence decision for United States exchanges has existed since 2017
The three acts under Article 28(4) are where this gets interesting. Two concern Singapore. The third is Commission Implementing Decision (EU) 2017/2238 of 5 December 2017, on the equivalence of the legal and supervisory framework applicable to designated contract markets and swap execution facilities in the United States of America. Its stated purpose is to verify that arrangements under the Commodity Exchange Act ensure that venues authorised by the Commodity Futures Trading Commission face legally binding requirements equivalent to those European trading venues face under MiFID II, the Market Abuse Regulation and MiFIR.
The Commission worked through the four conditions Article 28(4) sets out, covering authorisation and ongoing supervision, admission rules, issuer disclosure and rules against market abuse, and concluded that the United States framework met them. A European institution examined the DCM regime in detail and found it good enough. The European conversation about prediction markets proceeds as though no such finding exists.
What that decision buys is a direction of travel, and it points outward
The operative part is one sentence and the first five words do all the work. For the purposes of Article 28(4) of Regulation (EU) No 600/2014, it says, the United States framework applicable to the venues set out in the Annex shall be considered equivalent to the requirements laid down in MiFIR for trading venues as defined in MiFID II. Article 28 is the derivatives trading obligation, and it governs where a counterparty established in the Union may execute a derivative subject to that obligation.
The decision spells out the limit itself. One recital records that it determines the eligibility of third country venues to allow counterparties established in the Union to comply with their trading obligation when trading derivatives on a third country venue.
That is a permission for European money to go out. It says nothing about a United States exchange reaching in to a European client, because that question lives in Title VIII and depends on Article 47. One framework, two articles, two directions. A venue citing the 2017 decision as evidence of European market access would be describing a real document and the wrong permission. Under Directive 02, which asks that settlement sources, conflicts and commercial terms be stated in plain language on the surface where the trade happens, the standard for describing your own regulatory position is not lower than the standard for describing your fees.
The annex is a list of names and it closed before this industry arrived
There is a further reason the decision does not do the work a venue might want. Equivalence under Article 28(4) was not granted to the United States framework in the abstract. Article 1 limits it to the venues set out in the Annex, and the Annex is a list of named legal entities. Fourteen designated contract markets appear on it, among them the Chicago Mercantile Exchange, the Chicago Board of Trade, ICE Futures U.S., Nodal Exchange, NASDAQ Futures, trueEX, Eris Exchange, Cantor Futures Exchange and North American Derivatives Exchange, Inc. A separate list covers swap execution facilities.
Two of those names matter here. Cantor Futures Exchange and North American Derivatives Exchange were the venues listing binary event style contracts in the United States at the time, and the second, trading as OG, is the entity this site covered when Washington suspended enforcement against it while an injunction ran against a competitor. The venues that define the category as of 4 November 2026 are not on it, and could not be. The Commodity Futures Trading Commission announced its order of designation to KalshiEX LLC in release 8302-20 on 4 November 2020, almost three years after the Annex. QCX LLC, trading as Polymarket US, was designated on 9 July 2025 and holds an amended order dated 25 November 2025.
Nor has the list been refreshed. The Commission's list of acts under MiFIR shows the Singapore decision of 1 April 2019 alongside the implementing decision of 16 December 2020 that amended it. The United States decision stands alone, with no amending act beside it. A named list with no maintenance mechanism is a snapshot of an industry, and this one was taken in 2017.
A branch in one member state is still a branch in one member state
The practical consequence that gets missed is about branches. A venue told the ESMA register is shut reaches for the obvious workaround. Authorise a branch in one member state, serve professionals across the Union from there. Article 47(3) is that mechanism, and it is written in permissive terms. A third country firm authorised under Article 39 of MiFID II shall be able to provide the services covered by the authorisation to eligible counterparties and professional clients in other member states without establishing new branches.
But Article 47(3) is a paragraph of Article 47, the equivalence article. The branch passport switches on when the Commission makes the decision, and the Commission has not made it. So a branch authorised in Dublin or Amsterdam is permission to operate in Ireland or the Netherlands, and the other twenty six member states are a separate set of questions.
Germany decides case by case and puts the words in the statute
What is left is the national layer, and the fastest way to see what that means is to read three member states. Germany first. Section 91(1) of the Wertpapierhandelsgesetz, the German Securities Trading Act, opens by making itself subject to Title VIII of Regulation (EU) No 600/2014, then provides that BaFin may determine, in the individual case, that a list of German conduct and organisational provisions does not apply to a third country firm providing investment services in Germany on a cross border basis, for as long as home state supervision makes additional BaFin supervision unnecessary. The statute allows conditions, and names one, that the firm let compliance with equivalent requirements be monitored.
The phrase to notice is im Einzelfall, in the individual case. This is not a category a firm qualifies for by reading the rules, it is an administrative determination about one firm with conditions attached at the regulator's discretion. And it does not grant a licence. It disapplies conduct rules, which is a narrower thing.
The Dutch exemption names three countries and one of them is the United States
The Netherlands took the opposite approach and wrote a list. Article 10 of the Vrijstellingsregeling Wft exempts investment firms from the licence requirement in Article 2:96 of the Wet op het financieel toezicht, and the version introduced alongside MiFID II, published in the Dutch Staatscourant on 4 January 2018 and signed on 22 December 2017, limits it to firms established in Australia, the United States or Switzerland, then narrows it again to firms serving solely eligible counterparties or professional clients within the meaning of Annex II Section I of MiFID II.
Two further paragraphs deserve a venue's attention. One removes the exemption from firms entitled to operate under Article 47(3) of MiFIR, the national regime standing aside the moment the European one engages. The other required firms already relying on it to notify the Autoriteit Financiele Markten before 1 January 2019 that they serve no non professional clients in the Netherlands. A whitelist, a client category limit and a notification duty is not a passport, but it is far more usable than a case by case determination, and a United States firm sits inside the perimeter it draws.
France wrote the missing decision into its own condition
France is the most instructive of the three, because French law has the gap built into its text. Article L. 532-48 of the Code monetaire et financier, in the version in force since 24 May 2019 and shown on Legifrance as current law on 4 November 2026, requires a third country firm to establish a branch to provide investment services in metropolitan France and the listed overseas territories. The Autorite de controle prudentiel et de resolution authorises that branch, subject to conditions including home state supervision, cooperation arrangements between authorities, a tax condition and membership of the investor guarantee scheme.
Then comes the part that ties the picture together. The branch requirement extends to three client categories, and the third of them, professional clients and eligible counterparties, applies only where the Commission has not adopted an equivalence decision under Article 47 of MiFIR, or where such a decision has lapsed. The French legislature did not assume the European route would stay shut. It drafted a conditional rule that flips the day the Commission acts. A decree of 27 June 2019, adopted under that article, carves out narrow cases where no branch is needed.
The compliance object changes at every border
Three member states, three answers. A discretionary exemption from conduct rules, a whitelist of home jurisdictions, and a branch requirement with a conditional clause. Same firm, same product, same month, and the compliance object differs in each. It is the lesson the instrument classification question taught at a different altitude, where whether a yes or no contract is a financial instrument also had to be settled state by state.
None of which means Europe is being unreasonable. Equivalence is a political instrument and the Commission may withhold it. The point is what a venue should stop waiting for. Under Directive 05, standards are set against the jurisdiction that regulates next, not only the one that has not yet. A firm treating the ESMA register as the European answer arriving soon has picked the jurisdiction that may never regulate it over the twenty seven that already can.
What a venue should be able to say about its European route
None of this argues against European ambition. It argues about the shape of the answer. Four questions separate a venue that has done the analysis from one that has read a summary of it.
- Which instrument, in which member state. Not the European route, because there is not one. The national provision by name, with the client categories it covers.
- What the disclosure says. Article 46 requires a third country firm to tell clients in writing, prominently, that it may serve only professional clients and is not supervised in the Union. That is a sentence on a screen, which makes it a product decision.
- Which equivalence is being claimed, if any. The 2017 decision is about the derivatives trading obligation and a named list of venues. Saying so costs nothing and prevents a claim that would be hard to defend later.
- What happens if the decision arrives. French law already has the switch written in. A venue whose European plan is one national exemption should know which arrangements an Article 47 decision would change.
The register has been in the regulation since 2014, and as of 4 November 2026 the condition for entering it has not been met once, for any jurisdiction. That is not a delay, it is a design never activated. Meanwhile the one equivalence decision that looked at this exact category of venue was adopted nearly nine years ago, said yes, and granted a permission nobody here was asking for. The category that is serious about Europe will read both documents instead of quoting the one it prefers.