PARIS, Feb. 24, 2026 — The European Securities and Markets Authority said in a press release that derivatives marketed as “perpetual futures” or “perpetual contracts” are likely to fall within the scope of national product intervention measures on contracts for differences (CFDs) where they meet the applicable definition.
The authority set out its position in a Public Statement published the same day, reminding firms and national competent authorities to assess whether national product intervention measures apply based on the specific characteristics of the products offered.
ESMA said it and national competent authorities have observed increased offering of such products providing leveraged exposure to underlying values, including crypto-assets such as Bitcoin or Ethereum. The original temporary EU CFD intervention measures adopted in 2018 were subsequently replaced by permanent national measures mirroring those restrictions, the authority noted.
Product label does not determine classification
ESMA stated that firms should assess whether national CFD product intervention measures apply to the products they offer based on product characteristics rather than commercial name. A label such as “perpetual futures” is not determinative for categorisation under MiFID II, the authority said.
Firms must conduct a careful legal analysis of products and their functioning to determine whether they fall within the scope of the intervention measures, ESMA added, while adhering to the obligation to act honestly, fairly and professionally in accordance with the best interests of clients.
CFD measures and scope indicators
Derivatives meeting the CFD definition would be subject to leverage limits, a mandatory risk warning, margin close-out and negative balance protection, as well as a prohibition on monetary and non-monetary benefits, ESMA said.
The authority added that derivatives providing exposure to an underlying value that is not exclusively physically settled would likely fall within scope unless excluded under the 2018 definition. ESMA stated that certain characteristics are not relevant to the assessment, including whether the product is traded on a venue, the presence of funding-rate mechanisms, or voluntary safeguards such as negative balance protection or “insurance funds.”
MiFID II investor protection requirements
Beyond the product intervention analysis, ESMA said firms should consider broader investor protection requirements under MiFID II that are particularly relevant for leveraged products given their complexity and risk.
On product governance, the authority stated that firms should conduct a careful target market assessment that considers key risk factors, including those linked to leverage and margin trading. This is expected to result in a narrow target market and a distribution strategy aligned with it.
ESMA added that certain marketing practices would not be consistent with product governance rules, including mass campaigns, initiatives targeting inexperienced investors, or broad prompts encouraging clients to “get started now.”
The authority further stated that, as complex financial instruments, derivatives require an appropriateness assessment where non-advised services are provided.
Conflicts of interest and PRIIPs
ESMA said firms should take steps to identify and prevent or manage conflicts of interest related to offering derivatives such as perpetual futures or perpetual contracts, noting that a conflict may arise where the products are issued by a group entity or traded on a venue belonging to the group.
The authority also stated that derivatives such as so-called perpetual futures or perpetual contracts are packaged investment products under the PRIIPs Regulation, requiring firms to prepare a Key Information Document when distributing these products to retail clients.
