Can Alternative Trading Systems List Binary Options Brokers

Table of Contents

I. Introduction

Purpose: This report provides a detailed regulatory analysis examining whether Alternative Trading Systems (ATS) in the United States (US) and their counterparts in the European Union (EU)—Multilateral Trading Facilities (MTFs) and Organised Trading Facilities (OTFs)—are permitted under applicable legal frameworks to list or facilitate trading related to binary options brokers or the binary options products they offer. The central question addresses the intersection of regulations governing these specific trading venues and the distinct regulatory treatment of binary options.

Scope: The analysis encompasses the primary regulatory environments governing financial markets in the US and the EU. In the US, this includes rules and guidance from the Securities and Exchange Commission (SEC), particularly Regulation ATS, the Commodity Futures Trading Commission (CFTC), and the Financial Industry Regulatory Authority (FINRA). In the EU, the focus is on the Markets in Financial Instruments Directive II (MiFID II) framework, including the Markets in Financial Instruments Regulation (MiFIR) and guidance from the European Securities and Markets Authority (ESMA) and National Competent Authorities (NCAs), with specific attention to the UK’s Financial Conduct Authority (FCA) implementation post-ESMA measures. Key areas of investigation include the definitions and operational rules for ATSs, MTFs, and OTFs; the definition, classification, and legality of binary options; and the regulatory requirements for brokers offering these products.

Methodology: The analysis proceeds by first defining the relevant trading venues (ATS, MTF, OTF) and contrasting them with traditional exchanges. It then defines binary options, explores their complex regulatory classification, and examines their legal status in the target jurisdictions. Subsequently, the report analyzes the specific regulations governing the types of financial instruments permitted for trading on ATSs, MTFs, and OTFs. The regulatory framework surrounding binary options brokers is also assessed. Finally, these findings are synthesized to determine the regulatory feasibility of ATSs/MTFs/OTFs engaging with binary options or the brokers offering them.

Roadmap: Section II defines ATSs and their EU counterparts (MTFs/OTFs), distinguishing them from traditional exchanges. Section III delves into the nature and classification of binary options. Section IV examines the regulatory scope of instruments permitted on ATSs/MTFs/OTFs. Section V analyzes the specific regulatory landscape and legality of binary options in the US and EU. Section VI discusses the regulation of brokers offering binary options. Section VII synthesizes these elements to address the core question. Section VIII presents the conclusion.

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II. Understanding Alternative Trading Systems (ATS) and EU Equivalents

A. Definition and Core Function

US Alternative Trading Systems (ATS): An Alternative Trading System (ATS) in the US is formally defined by the SEC as an organization, association, system, or group that provides a marketplace or facilities for bringing together purchasers and sellers of securities, or otherwise performs functions commonly associated with a stock exchange regarding securities.¹ Crucially, these systems do not set rules governing subscriber conduct beyond the trading itself, nor do they discipline subscribers other than by exclusion from trading.² They are SEC-regulated electronic venues where computerized systems match buy and sell orders for securities.⁴ ATSs typically operate under an exemption from the requirement to register as a national securities exchange (provided by Exchange Act Rule 3a1-1(a)), contingent upon compliance with SEC Regulation ATS.³ Their fundamental purpose is to match buyers and sellers, acting as a venue to find counterparties for transactions in securities.²
EU Multilateral Trading Facilities (MTFs) and Organised Trading Facilities (OTFs): Within the EU regulatory framework established by MiFID II, MTFs and OTFs serve functions comparable to US ATSs.² An MTF is defined as a multilateral system that brings together multiple third-party buying and selling interests in *financial…source according to non-discretionary rules, resulting in contracts.⁹ An OTF is also a multilateral system, distinct from Regulated Markets (RMs) and MTFs, in which multiple third-party buying and selling interests can interact.⁹ However, OTFs are specifically restricted to trading certain non-equity instruments: bonds, structured finance products, emission allowances, and derivatives.¹⁰ Unlike MTFs, OTF operators (typically investment firms) may exercise discretion in executing orders.⁹ A core objective of MiFID II was to increase transparency and ensure that more trading activities, including those previously conducted over-the-counter (OTC), occur on regulated platforms like RMs, MTFs, and OTFs.⁹
Types of ATS/MTF/OTF: These venues manifest in several forms, catering to different market needs.

Dark Pools: Private venues, often ATSs, where participants (primarily institutional investors) can trade large blocks of securities anonymously without displaying orders publicly before execution.³ This anonymity minimizes market impact.³
Electronic Communication Networks (ECNs): Fully automated systems (often a subset of ATSs) that match buy and sell orders for securities, facilitating direct trading between participants.² They are known for speed and price transparency.¹⁷
Crossing Networks: Systems that match buy and sell orders at specific times or predetermined prices (e.g., midpoint of public market prices), often without public display.² They aim to reduce transaction costs and market impact.¹⁷
Call Markets: Aggregate orders over a period and execute them simultaneously at specific times, determining prices based on matched volume.² Often used for less liquid securities.¹⁷
Broker-Dealer Internal Systems: Some broker-dealers run internal systems to match client orders internally before potentially routing them externally.¹⁷
OTFs (EU Specific): MiFID II introduced OTFs to capture platforms like broker crossing systems, particularly for non-equity instruments, operating potentially with discretion.⁹

B. Key Differences from National Securities Exchanges (NSEs) / Regulated Markets (RMs)

ATSs/MTFs/OTFs differ significantly from traditional National Securities Exchanges (NSEs) in the US and Regulated Markets (RMs) in the EU:

Regulation Level and Status: ATSs are generally subject to a less intensive regulatory regime compared to NSEs.³ While NSEs must register with the SEC as exchanges and function as Self-Regulatory Organizations (SROs) with quasi-governmental powers ¹⁸, ATSs register as broker-dealers and operate under the Regulation ATS exemption.² Similarly, RMs in the EU often have stricter requirements than MTFs or OTFs, although MiFID II aimed to level the playing field regarding transparency and organizational standards.¹⁰
Rule-Making/SRO Function: NSEs and RMs establish comprehensive rules, including listing standards for securities and codes of conduct for their members, and possess the authority to discipline members.¹⁸ In contrast, ATSs and MTFs typically do not set rules beyond those governing the conduct of subscribers’ trading on the system and can only discipline by excluding a participant from trading.² OTF operators, while not setting broad market rules, can exercise discretion in trade execution.⁹
Transparency: NSEs/RMs are predominantly “lit” markets, meaning they publicly display quotation information (bid/ask prices and sizes).¹⁸ Many ATSs, particularly dark pools, operate without pre-trade transparency, concealing order information until after execution.³ MiFID II imposes specific pre- and post-trade transparency requirements on MTFs and OTFs, although waivers and deferrals for certain types of orders or instruments exist (e.g., large-in-scale orders, illiquid instruments).⁹ Post-trade reporting to the consolidated tape (US) or equivalent public disclosure (EU) is generally required for trades on ATSs/MTFs/OTFs.¹⁸
Users/Participants: Access to ATSs is typically limited to subscribers, who are often broker-dealers and institutional investors.³ NSEs/RMs may have broader membership criteria.
Listing Function: A primary role of NSEs/RMs is the listing of securities, where companies meet specific standards to have their shares publicly traded (“going public”).¹⁸ ATSs, MTFs, and OTFs generally do not perform this primary listing function. Instead, they facilitate the trading of instruments that are already issued, often listed on an exchange, or sometimes unlisted securities or other financial instruments.¹¹ Their core function is matching buyers and sellers of these instruments, not providing a venue to “list brokers” as tradable entities.²

The distinction regarding the listing function is critical. The query’s phrasing about “listing binary options brokers” appears to fundamentally misunderstand the purpose of these trading venues. ATSs and their EU counterparts are marketplaces for financial products (securities, derivatives, etc.). While brokers are often the participants using these systems ³, the systems themselves facilitate transactions in assets between these participants. They do not list the participating firms as items to be traded.

Furthermore, the requirement for US ATSs to register as broker-dealers ², rather than exchanges, places them under a distinct regulatory regime overseen by the SEC and FINRA.⁴ This structural difference, operating under an exemption from full exchange status ³, shapes their permitted activities, focusing them more narrowly on matching trades in specific instrument types compared to the broader market governance role of exchanges.

Table 1: Comparison of ATS/MTF/OTF and National Exchanges/Regulated Markets

Feature	Alternative Trading System (ATS – US) / MTF/OTF (EU)	National Securities Exchange (NSE – US) / Regulated Market (RM – EU)
Primary Function	Match buyers/sellers of securities/financial instruments ¹	Provide primary listing venue; facilitate trading; set market rules ¹⁸
Regulation	SEC Reg ATS (US); MiFID II (EU). Register as Broker-Dealer (US) ²	SEC Exchange Act / MiFID II. Register as Exchange/RM; SRO function (US) ¹⁰
Rule-Making	Limited to subscriber trading conduct; discipline by exclusion ²	Set listing standards, member conduct rules; disciplinary powers (SRO) ¹⁸
Transparency	Often operate as “dark pools” (no pre-trade); post-trade reporting required ⁵	Typically “lit” markets; public pre-trade quotes; consolidated tape reporting ¹⁸
Participants	Subscribers (often broker-dealers, institutional investors) ³	Members (broader access possible) ¹⁸
Listing	Trade existing securities/instruments; do not “list” companies ³	Primary venue for listing company securities (“going public”) ¹⁸

C. Regulatory Oversight

US: The SEC is the primary regulator for ATSs, exercising oversight through Regulation ATS (specifically Rules 300-303 under the Securities Exchange Act of 1934).¹ Compliance requires registration as a broker-dealer with the SEC (using Form BD) and typically necessitates membership in FINRA.³ ATSs must file Form ATS with the SEC before commencing operations, providing detailed information about their structure and processes, and file amendments for changes or cessation.³ As FINRA members, ATSs are also subject to FINRA rules and oversight.⁴ Regulation ATS imposes specific obligations, including fair access requirements for ATSs exceeding certain volume thresholds, standards for systems capacity, integrity, and security (also volume-triggered), recordkeeping and reporting duties, and crucially, requirements to establish safeguards to protect confidential subscriber trading information.²
EU: The MiFID II directive and the MiFIR regulation establish the comprehensive framework for MTFs and OTFs.⁹ Direct oversight is primarily carried out by the National Competent Authority (NCA) in the member state where the venue is authorized, following guidelines and coordination provided by ESMA.⁹ Authorization is mandatory, and venues must adhere to stringent organizational requirements covering governance, systems resilience, controls, and conflict of interest management.⁹ They must also comply with detailed pre- and post-trade transparency rules tailored to instrument types and trading models ⁹, establish fair and orderly trading procedures, and set objective, non-discriminatory access criteria.¹⁰

III. Understanding Binary Options

A. Definition and Mechanics

Binary options are a distinct type of options contract characterized by their unique payout structure.²⁷ The defining feature is that the payout depends entirely on the outcome of a simple yes/no proposition.²⁷ This proposition typically relates to whether the price of an underlying asset (such as a currency pair, stock index, individual stock, or commodity) will be above or below a specific price level (the strike price) at a predetermined expiration time.²⁷

This structure leads to an “all-or-nothing” or “fixed-return” outcome.²⁸ If the trader’s prediction is correct (the option expires “in-the-money”), they receive a predetermined, fixed cash payout.²⁸ If the prediction is incorrect (the option expires “out-of-the-money”), the trader loses the entire amount invested in the option, often referred to as the premium.²⁸

A critical distinction from traditional “vanilla” options is that holding a binary option does not grant the owner the right to buy or sell the underlying asset itself.²⁸ The contract is purely a prediction on price movement relative to the strike at expiration. Upon expiration, binary options exercise automatically based on whether the condition was met; there is no further decision for the holder to make regarding exercise.²⁸ While underlying assets can vary widely ³⁰, many binary options offered, particularly through online platforms, have very short expiration times, sometimes minutes or hours.³⁰

B. Regulatory Classification

The regulatory classification of binary options is complex and lacks universal consensus, varying significantly by jurisdiction and the specific characteristics of the contract, particularly the nature of the underlying asset.

US Perspective: In the United States, binary options can fall under the purview of either the SEC or the CFTC, leading to regulatory ambiguity.

Securities: If a binary option’s underlying asset is a security (e.g., based on the price of an individual company’s stock), the SEC may classify the binary option itself as a security.²⁸ Offering or selling such instruments without SEC registration or a valid exemption is unlawful.²⁸ Furthermore, platforms that facilitate the matching of buy and sell orders in these security-based binary options could be deemed unregistered securities exchanges or unregistered broker-dealers, violating federal securities laws.²⁸
Swaps/Commodity Options: Alternatively, binary options based on commodities (like gold or oil), currencies, interest rates, or certain specified events (even non-financial ones like election outcomes) are generally considered swaps or commodity options under the jurisdiction of the CFTC.³⁸ The CFTC explicitly regulates event-based contracts structured as binary options as swaps.⁴⁹ Trading these requires compliance with the Commodity Exchange Act (CEA) and related CFTC regulations.
Gambling Comparison: The fixed-odds, win-or-lose payout structure frequently draws comparisons to gambling.³² Legally, the distinction often rests on whether the instrument serves a legitimate economic purpose, such as hedging pre-existing risk, or is purely speculative with a negative expected value for participants after costs.⁴⁹ Many binary options, particularly those offered on unregulated platforms, are viewed as purely speculative.⁴⁹
FINRA View (OTC): In the context of Over-The-Counter (OTC) options reporting, FINRA has noted that certain types of OTC binary options are considered ‘exotic’ and are not deemed substantially similar to standard exchange-listed options.⁵²
EU/UK Perspective:

Financial Instruments (Derivatives): Within the EU’s MiFID II framework, binary options offered by investment firms are generally classified as financial instruments, specifically falling under the category of derivatives (such as options or ‘other derivative contracts’ listed in MiFID II Annex I, Section C).³⁴ This classification subjects them to the full scope of MiFID II regulations, including conduct of business rules, transparency requirements (where applicable), and, significantly, the product intervention powers of ESMA and NCAs.
Historical Gambling View (UK): It is noteworthy that prior to regulatory shifts aligning with MiFID II, the UK treated binary options primarily as betting products, regulated by the Gambling Commission rather than the Financial Conduct Authority (FCA).³⁴ However, recognizing the similar risks they posed compared to other derivatives, the regulatory approach shifted to classify them as financial instruments subject to FCA oversight.⁴⁶

This lack of a single, clear, and globally accepted classification poses a significant challenge. For regulated trading venues like ATSs, which operate under specific mandates (e.g., the SEC’s focus on “securities” for US ATSs ¹), this ambiguity creates substantial compliance hurdles. Attempting to list or trade an instrument that might be deemed a security by one regulator, a swap by another, or akin to gambling complicates adherence to the venue’s own operating rules and regulatory obligations.

Moreover, the fundamental structure of binary options sets them apart from traditional assets traded on platforms like ATSs. They represent a contractual wager on a future price point or event, offering a binary payout without conferring any ownership rights or claims on the underlying asset.²⁸ This contrasts sharply with instruments like stocks (representing ownership) or bonds (representing debt), which form the core trading activity for many securities-focused venues.¹⁷ While ATSs can facilitate trading in derivatives based on securities (e.g., options on government securities ²⁴), the specific nature of binary options, their frequent linkage to non-security underlyings, and their distinct regulatory treatment position them awkwardly relative to the typical operational scope of these platforms.

IV. Regulatory Framework for ATS Operations: Permitted Instruments

The types of financial instruments that ATSs, MTFs, and OTFs are permitted to trade are defined by their respective regulatory frameworks.

A. US (SEC Regulation ATS)

The regulatory framework for ATSs in the US is firmly rooted in securities law. Regulation ATS, promulgated by the SEC, governs venues that match buyers and sellers of securities but operate under an exemption from national securities exchange registration.¹

Primary Focus on Securities: The explicit language of Regulation ATS and associated SEC guidance consistently refers to the trading of “securities.” This encompasses a range of instruments including National Market System (NMS) stocks, equity securities not classified as NMS stocks (often traded OTC), U.S. government securities, corporate bonds, and municipal securities.¹⁷
Explicit Mentions: Proposed amendments and related regulatory releases concerning Regulation ATS specifically address its application to ATSs trading U.S. Government Securities, NMS Stock, and other securities, reinforcing this focus.²³ The Form ATS, which these venues must file with the SEC, requires applicants to detail the specific types of securities they intend to facilitate trading in.⁶
Exemptions and Inclusions: Rule 301(a)(4)(ii) of Regulation ATS outlines the scope for certain exemptions, notably mentioning systems limiting their securities activities to government securities, related repurchase agreements, and significantly, any put, call, straddle, option, or privilege on a government security (with certain exclusions).²⁴ The specific inclusion of options on government securities within this securities-centric framework suggests that other types of options or derivatives, particularly those not clearly based on securities or falling under CFTC jurisdiction, may not automatically fit within the standard ATS operational scope unless explicitly permitted.
FINRA Role: FINRA, which oversees broker-dealers including ATS operators, also frames its rules in the context of securities trading. FINRA Rule 6279, concerning ATS participation in the Alternative Display Facility (ADF), implicitly assumes the trading of ADF-eligible securities.²⁵ FINRA’s guidance for firms applying to operate an ATS centers on the function of matching buy and sell orders for securities.⁴

B. EU (MiFID II – MTFs and OTFs)

MiFID II provides distinct scopes for MTFs and OTFs regarding permitted instruments:

MTFs: Multilateral Trading Facilities generally have a broad scope, permitted to trade a wide array of financial instruments as defined under MiFID II Annex I, Section C.²¹ This comprehensive list includes transferable securities (stocks, bonds), money market instruments, units in collective investment undertakings (UCITS, AIFs), and various derivative contracts.⁵³ The derivatives category is extensive, covering options, futures, swaps, forwards, and other derivatives related to securities, currencies, interest rates, emission allowances, commodities, credit risk, financial indices, and more.¹⁴
OTFs: Organised Trading Facilities, introduced by MiFID II, have a deliberately restricted scope compared to MTFs and RMs.⁹ They are specifically designed as venues for trading non-equity instruments: bonds, structured finance products, emission allowances, and derivatives.¹⁰ Critically, the trading of equities (shares and similar instruments like ETFs and depositary receipts) is explicitly prohibited on OTFs.¹⁴
Transparency and Instrument Determination: Both MTFs and OTFs are required under MiFID II to establish transparent rules for determining which specific financial instruments can be traded on their systems.²⁶ A key goal of MiFID II was to bring more organized trading, particularly in derivatives and bonds, onto regulated platforms, increasing transparency.⁹

The differing instrument scopes highlight a potential regulatory mismatch for binary options. In the US, the strong emphasis of Regulation ATS on “securities” creates a significant barrier for instruments like binary options, which are often classified as swaps or commodity options under CFTC jurisdiction or lack clear status as securities.²⁸ While Regulation ATS mentions “other securities” ²³, the overall context and specific examples (like options on government securities ²⁴) suggest this flexibility may not readily extend to instruments regulated by a different agency (CFTC) or those deemed highly problematic. Integrating such instruments would likely require navigating complex inter-agency jurisdictional issues and potentially fundamental changes to the ATS framework.

In the EU, while the broad definition of “financial instruments” under MiFID II technically allows MTFs to trade derivatives, including binary options ⁵³, this theoretical possibility is effectively nullified by the specific product intervention measures banning their sale to retail clients (discussed in Section V). OTFs, although designed for derivatives ¹³, face the same retail ban issue and operate under a negative regulatory cloud regarding binary options, making them an unlikely venue even for professional trading.

This situation reflects a form of path dependency. The regulatory frameworks for ATSs (dating back to 1998 ²) and even the updated MiFID II (implemented 2018 ¹⁵) were largely designed based on existing market structures dominated by equities, bonds, and more traditional derivatives. The subsequent explosion of online binary options trading, often linked to fraud and significant retail investor harm, presented a challenge that these frameworks were not inherently built to accommodate. The regulatory response—confining legal US trading to specific exchanges and banning retail sales in the EU ³⁸—demonstrates that the existing general rules for alternative trading venues were deemed insufficient for the unique risks posed by binary options, necessitating targeted restrictions rather than integration.

V. Regulatory Landscape for Binary Options

The legality and regulatory treatment of binary options differ starkly between the US and the EU, with significant implications for where and how they can be traded.

A. US Status

In the United States, the trading of binary options is subject to strict regulatory constraints, primarily focused on the venue where trading occurs:

Legality Tied to Venue: Binary options are considered legal for US persons to trade only if the transactions are conducted on specific exchanges registered with the SEC as national securities exchanges or designated by the CFTC as Designated Contract Markets (DCMs).³⁰ Trading binary options through any other platform, particularly the numerous internet-based platforms often operating offshore and not registered with US regulators, is illegal and actively warned against by both the SEC and CFTC.²⁸
Limited Approved Venues: The list of approved venues is extremely small. Currently, Nadex (North American Derivatives Exchange, a CFTC-regulated DCM) and the CME (Chicago Mercantile Exchange, offering similar “event futures” contracts) are the primary examples.³⁸ The CBOE (Chicago Board Options Exchange, an SEC-regulated exchange) previously listed some binary options but appears less active currently.⁴³ Notably, Alternative Trading Systems (ATSs) are not included in the list of legally permitted venues for binary options trading in the US. This explicit restriction to designated exchanges/DCMs directly excludes ATSs, which operate under a different regulatory status (broker-dealer registration with an exemption from exchange registration ³).
SEC/CFTC Jurisdiction and Warnings: As discussed previously, jurisdiction is split between the SEC and CFTC depending on the underlying asset.²⁷ Both agencies have issued numerous investor alerts warning about the high risks of fraud associated with binary options, especially those offered through unregistered online platforms.²⁷
Fraud Prevalence: The binary options market, particularly the segment operating outside US regulation, is plagued by fraudulent activities. Common complaints include refusal to credit accounts or process withdrawals, identity theft, and manipulation of trading software to ensure customer losses.²⁷ This pervasive association with fraud creates a significant reputational and compliance barrier for any legitimate, regulated venue considering involvement with these products.

B. EU Status

The regulatory approach in the European Union has been decisive and focused on investor protection:

ESMA Retail Ban: Following widespread evidence of retail investor harm, ESMA utilized its product intervention powers under MiFIR to implement an EU-wide prohibition on the marketing, distribution, or sale of binary options to retail clients.³⁹ This measure was initially temporary (starting July 2018) but has since been made effectively permanent through adoption by individual NCAs across the EU.⁵⁵
Rationale: The ban was justified by significant investor protection concerns stemming from the products’ inherent characteristics: complexity and lack of transparency, structural negative expected return for investors, embedded conflicts of interest between providers and clients, and documented evidence of substantial and widespread losses among retail investors engaging with these products (often cited alongside similar concerns for CFDs, where studies showed 74-89% of retail accounts lost money).³³
Scope: The prohibition applies to any investment firm authorized under MiFID II that markets, distributes, or sells binary options to retail clients within the EU.³⁹ It covers binary options classified as financial instruments under MiFID II.³⁹
UK Status: The UK’s FCA adopted a similar stance, making the prohibition permanent within its jurisdiction and notably extending it to include ‘securitised binary options,’ a category potentially excluded from the initial scope of ESMA’s temporary measures, closing a potential loophole.³⁴

C. Implications for Institutional/Professional Trading

US: The requirement to trade only on specific registered exchanges or DCMs applies across the board, not just to retail investors. Therefore, any institutional trading of binary options in the US must also occur on these few permitted, non-ATS venues.
EU: The ESMA/NCA prohibitions specifically target retail clients.³⁹ This technically leaves open the possibility of offering binary options to professional clients (as defined under MiFID II). However, the practical reality is challenging. The strong regulatory condemnation of the product, the inherent risks identified (which also apply to professionals, albeit with different suitability standards), significant reputational concerns, and the potential difficulties in meeting MiFID II’s general conduct of business obligations (like suitability and appropriateness) for such a controversial product act as powerful deterrents. Firms that previously offered binary options to retail clients were advised to seek a Variation of Permission (VoP) from their regulator to either remove the product entirely or explicitly limit their authorization to professional clients only.⁴¹ The retail ban effectively eliminated the primary market for these products, making them commercially unattractive for most regulated platforms (MTFs/OTFs) even if professional trading remains technically possible, albeit fraught with risk. The strong regulatory signal against binary options has rendered them toxic within the mainstream regulated financial system.

Table 2: Regulatory Status of Binary Options (US vs. EU/UK)

Feature	United States (US)	European Union (EU) / United Kingdom (UK)
Legal Status	Legal only if traded on specific CFTC-regulated DCMs or SEC-registered exchanges ³⁸	Marketing, distribution, sale prohibited to retail clients.³⁹
Permitted Venues	Limited designated exchanges/DCMs (e.g., Nadex, CME event futures).³⁸ ATSs are excluded.	Not applicable for retail. Professional trading faces high hurdles/disincentives on MTFs/OTFs due to product risk & reputation.⁶⁰
Primary Regulators	SEC (if security-based), CFTC (if commodity/swap-based) ²⁸	ESMA, National Competent Authorities (NCAs), FCA (UK) under MiFID II framework ⁹
Regulatory Classification	Security, Swap, Commodity Option, or potentially Gambling-like depending on structure/underlying ²⁸	Financial Instrument (Derivative) under MiFID II.³⁹ Historically viewed as gambling in UK.³⁴
Key Concern	High risk of fraud, particularly from unregistered offshore platforms ²⁸	Significant retail investor protection concerns (complexity, losses, conflicts of interest) ³⁹
Broker Requirements	Must be registered (SEC/CFTC) and operate via permitted venues ³⁸	Must be MiFID authorized; cannot offer to retail clients.⁵⁴

VI. Regulation of Binary Options Brokers

The regulatory framework governing brokers that offer binary options is stringent and acts as a further constraint on how and where these products can be accessed.

A. Licensing Requirements

US: To legally offer binary options involving US customers, a broker must comply with the registration requirements of either the SEC or the CFTC, depending on the product’s classification. If the binary option is deemed a security, the broker generally must register with the SEC as a broker-dealer and typically become a member of FINRA.²⁸ If the binary option is classified as a swap or commodity option, the broker must register with the CFTC as a Futures Commission Merchant (FCM) or Introducing Broker (IB) and adhere to National Futures Association (NFA) rules.³⁸ Crucially, even registered brokers can only offer binary options trading through the specifically designated exchanges (SEC-registered) or DCMs (CFTC-regulated).³⁸ Soliciting US clients without the proper US registration and venue affiliation is illegal.³⁸ Licensing involves meeting capital requirements, implementing Know Your Customer (KYC) and Anti-Money Laundering (AML) procedures, and undergoing background checks.⁶⁴
EU/UK: Prior to the retail ban, brokers offering binary options within the EU needed authorization under MiFID from a relevant NCA (such as CySEC in Cyprus or the FCA in the UK).⁶⁴ However, following the ESMA/NCA intervention measures, these authorized firms are now prohibited from marketing, distributing, or selling binary options to retail clients.³⁹ The regulatory focus for brokers in this space (and related complex products like CFDs) is heavily centered on consumer protection, preventing fraud and manipulation, ensuring fair practices and transparency, and establishing accountability and dispute resolution mechanisms.⁶⁶ While offshore licenses exist, they often do not grant the right to operate legally within strictly regulated jurisdictions like the EU or US.⁶⁵

B. Restrictions on Operations and Client Solicitation

Beyond licensing, strict operational rules apply:

US: The most significant restriction is the limitation on where legal binary options trading can occur – exclusively on the few designated exchanges or DCMs.³⁸ Brokers operating from offshore locations without US registration are explicitly barred from soliciting or accepting funds from US customers.³⁸ Regulatory agencies maintain a high level of scrutiny regarding fraudulent practices, software manipulation, and issues with fund withdrawals commonly associated with unregistered binary options providers.²⁷
EU/UK: The primary restriction is the comprehensive ban on engaging with retail clients for binary options.³⁹ Activities aimed at circumventing this prohibition are also forbidden.⁴⁰ The regulatory environment, informed by the experience with CFDs as well, strongly discourages aggressive marketing tactics and mandates clear risk warnings for complex speculative products.⁵⁴

The regulations governing brokers reinforce the barriers preventing ATS involvement with binary options. In the US, a broker’s registration and authorization to deal in binary options are intrinsically linked to operating through the specific, non-ATS venues permitted by the SEC and CFTC.³⁸ A broker cannot legally use an ATS to facilitate binary options trades for US clients if that ATS is not one of the designated exchanges/DCMs. In the EU, the ban simply removes the possibility for brokers to offer these products to the main market segment (retail) via any venue, including MTFs or OTFs.

Furthermore, the intense regulatory focus on the misconduct of many binary options brokers globally ²⁷ creates significant counterparty risk for any trading venue. ATSs, themselves regulated entities (as broker-dealers in the US ⁴), have obligations to supervise activity on their platforms and manage risks.⁴ Allowing participation by brokers dealing in a product so heavily associated with fraud and regulatory censure would expose the ATS operator to unacceptable compliance, legal, and reputational damage, conflicting directly with their mandate to maintain fair and orderly markets and protect confidential information.³

VII. Analysis: Can ATS List or Facilitate Trading in Binary Options or Related Brokers?

Synthesizing the regulatory frameworks for trading venues and binary options leads to a clear determination regarding the permissibility of ATSs (and EU equivalents) engaging with these products or the brokers offering them.

A. Assessment of ATS Permitted Instruments vs. Binary Option Classification

A fundamental conflict exists between the defined scope of instruments for these trading venues and the nature of binary options:

US ATS: Regulation ATS was established by the SEC primarily to govern platforms trading securities.¹ As established, binary options frequently fall outside a clear “security” classification, often being treated as swaps or commodity options under CFTC jurisdiction, or remaining in a legally ambiguous state.²⁸ This classification mismatch creates a primary obstacle, as ATSs are not typically regulated or structured to handle instruments falling under CFTC oversight or those lacking definitive securities status.
EU MTF/OTF: While MTFs possess a broad mandate to trade various MiFID-defined financial instruments, including derivatives ⁵³, and OTFs are specifically designed for certain non-equity derivatives ¹³, this technical capability is rendered largely irrelevant by the specific regulatory actions taken against binary options.

B. Impact of Binary Option Legality and Restrictions

The specific legal status and restrictions imposed on binary options trading create direct prohibitions:

US: The explicit legal requirement that binary options only be traded on designated SEC-registered exchanges or CFTC-regulated DCMs ³⁸ serves as a direct bar. ATSs do not fall into either of these categories. Facilitating trading in illegally offered binary options (e.g., from unregistered offshore platforms) is also clearly prohibited for any regulated entity.
EU/UK: The comprehensive ban on marketing, distributing, or selling binary options to retail clients effectively closes these products off from the main target market via any regulated venue, including MTFs and OTFs.³⁹ While professional trading might not be explicitly covered by the retail ban, the overwhelming regulatory disapproval, inherent product risks, and associated reputational damage make offering them even to professionals highly problematic and commercially unviable for platforms seeking to maintain market integrity.

C. Distinction: Listing Securities vs. Listing Brokers

The premise of an ATS “listing brokers” is inaccurate. These platforms are designed to facilitate transactions in financial instruments (like securities or derivatives) between participating entities (subscribers/users), which often include brokers.¹ There is no mechanism or regulatory provision for an ATS, MTF, or OTF to “list” brokerage firms themselves as tradable products or services. Therefore, the question of whether an ATS can list binary options brokers is moot based on the fundamental function of these venues.

D. Synthesis of Regulatory Constraints

The inability of ATSs/MTFs/OTFs to engage with binary options stems not from a single rule, but from a convergence of multiple regulatory and practical barriers:

Instrument Scope Mismatch: The primary focus of US ATSs on securities does not align well with the common classifications of binary options. While EU venues have broader derivative scopes, this is overridden by specific bans.
Explicit Venue Restrictions: US law confines legal binary options trading to specific non-ATS venues.
Market Prohibition: The EU/UK retail ban eliminates the core market and signals extreme regulatory caution, making the product toxic for regulated venues.
Functional Impossibility: ATSs/MTFs/OTFs trade instruments, they do not “list” brokers.
Fraud and Reputational Risk: The pervasive association of binary options with fraud makes them incompatible with the compliance and market integrity standards of legitimate trading venues.²⁷

These cumulative factors create an environment where ATS/MTF/OTF involvement is effectively impossible under current regulations. The regulatory actions taken—confining legal trading to highly specific venues in the US ³⁸ and imposing broad retail bans in the EU ³⁹—clearly indicate a regulatory intent to isolate and restrict binary options trading, particularly away from retail investors, rather than allowing their integration into broader alternative trading platforms. Regulators have chosen containment over accommodation for these specific products.

VIII. Conclusion

Based on a comprehensive analysis of the regulatory frameworks governing Alternative Trading Systems (ATSs) in the United States and their European Union counterparts (MTFs and OTFs), alongside the specific regulations concerning binary options and the brokers who offer them, the conclusion is definitive:

Alternative Trading Systems (ATSs) and their EU equivalents (MTFs/OTFs) are not permitted under current regulations to list binary options brokers or facilitate trading in binary options products.

This conclusion rests on several key, insurmountable regulatory and practical barriers:

Fundamental Instrument Mismatch: US ATSs are regulated by the SEC primarily as venues for trading securities. Binary options often fall outside this definition, being classified as swaps or commodity options under CFTC jurisdiction or having ambiguous status. While EU MTFs/OTFs can technically trade a wider range of derivatives under MiFID II, this is superseded by specific product interventions.
Explicit Venue Restrictions (US): US law explicitly restricts the legal trading of binary options to a small number of designated contract markets (DCMs) regulated by the CFTC or national securities exchanges registered with the SEC. ATSs do not qualify as either.
Effective Prohibition (EU/UK): The EU-wide (and UK-adopted) prohibition on the marketing, distribution, and sale of binary options to retail clients eliminates the primary market for these products. This ban, driven by severe investor protection concerns, makes it commercially unviable and regulatorily toxic for MTFs or OTFs to offer them, even if professional trading remains technically possible under the retail-focused ban.
Functional Nature of Venues: ATSs, MTFs, and OTFs are platforms designed to match buy and sell orders for financial instruments between participants. They do not function as venues to “list brokers” as tradable entities; this aspect of the initial query stems from a misunderstanding of how these trading systems operate.
Pervasive Fraud and Reputational Risk: The overwhelming association of the binary options industry (particularly unregistered segments) with widespread fraud, manipulation, and investor harm creates an unacceptable compliance and reputational risk for any legitimate, regulated trading venue. Facilitating trading in such products would directly contradict the mandate for market integrity and investor protection.

In summary, the combined weight of instrument scope limitations, explicit legal venue restrictions, market prohibitions driven by investor protection concerns, the functional nature of the trading venues, and the extreme risks associated with the binary options market creates an impenetrable barrier. The regulatory environment in both the US and EU has clearly evolved to isolate and restrict binary options trading, rather than allowing its integration into alternative trading platforms like ATSs, MTFs, or OTFs.

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Works cited

www.investopedia.com, accessed on April 21, 2025, https://www.investopedia.com/terms/a/alternative-trading-system.asp#:~:text=The%20SEC%20formally%20defines%20an,with%20respect%20to%20securities%20the
Alternative trading system – Wikipedia, accessed on April 21, 2025, https://en.wikipedia.org/wiki/Alternative_trading_system
Alternative Trading System (ATS) Definition and Regulation – Investopedia, accessed on April 21, 2025, https://www.investopedia.com/terms/a/alternative-trading-system.asp
Guidance for Alternative Trading Systems | FINRA.org, accessed on April 21, 2025, https://www.finra.org/compliance-tools/map-tools/alternative-trading-systems-guidance
Alternative Trading Systems (ATSs) – Investor.gov, accessed on April 21, 2025, https://www.investor.gov/introduction-investing/investing-basics/glossary/alternative-trading-systems-atss
Guidance for Alternative Trading Systems – finra, accessed on April 21, 2025, https://www.finra.org/sites/default/files/2023-08/MAP-Guidance-for-Alternative-Trading-Systems.pdf
Alternative Trading System (“ATS”) List – SEC.gov, accessed on April 21, 2025, https://www.sec.gov/foia-services/frequently-requested-documents/alternative-trading-system-ats-list
Alternative Trading System (ATS) – Definition, Examples – Corporate Finance Institute, accessed on April 21, 2025, https://corporatefinanceinstitute.com/resources/equities/alternative-trading-system-ats/
What is MiFID and MiFID II? – Dow Jones, accessed on April 21, 2025, https://www.dowjones.com/professional/risk/glossary/mifid-mifid-ii/
MiFID II – Market infrastructure, trading venues and central counterparties – Hogan Lovells, accessed on April 21, 2025, https://www.hoganlovells.com/~/media/hogan-lovells/pdf/mifid/subtopic-pdf/lwdlib01-4925114-v1-mifid_ii_trading_venues_jan_2016_v_3.pdf
Alternative Trading System (ATS): What It Is And How It Works – Warrior Trading, accessed on April 21, 2025, https://www.warriortrading.com/alternative-trading-system/
MiFID II Review Report – | European Securities and Markets Authority, accessed on April 21, 2025, https://www.esma.europa.eu/sites/default/files/esma70-156-4225_mifid_ii_final_report_on_functioning_of_otf.pdf
Market structure – CNMV, accessed on April 21, 2025, https://www.cnmv.es/portal/mifidii_mifir/mercados-estructuras?lang=en
MiFID II / MiFIR post-trade reporting requirements – AFME, accessed on April 21, 2025, https://www.afme.eu/portals/0/globalassets/downloads/publications/afme-mifidii-mifir-post-trade-reporting-requirements.pdf
MiFID II: Key Considerations for Asset Managers – Dechert LLP, accessed on April 21, 2025, https://www.dechert.com/knowledge/onpoint/2016/6/mifid-ii-key-considerations-for-asset-managers.html
Review of the MIFID II/ MIFIR Framework – International Swaps and Derivatives Association, accessed on April 21, 2025, https://www.isda.org/a/gvbTE/Review-of-the-MIFID-II-MIFIR-Framework.pdf
Alternative Trading System (ATS) Regulation and Requirements, accessed on April 21, 2025, https://www.innreg.com/blog/alternative-trading-system-ats-regulation-and-requirements
Where Do Stocks Trade? | FINRA.org, accessed on April 21, 2025, https://www.finra.org/investors/insights/where-do-stocks-trade
Types of Stock Exchanges – Investopedia, accessed on April 21, 2025, https://www.investopedia.com/articles/basics/04/092404.asp
MiFID II and Swaps Transparency: What You Need to Know – Tradeweb Markets, accessed on April 21, 2025, https://www.tradeweb.com/newsroom/media-center/insights/blog/mifid-ii-and-swaps-transparency-what-you-need-to-know/
Multilateral Trading Facility (MTF) – Tradeweb Markets, accessed on April 21, 2025, https://www.tradeweb.com/our-markets/market-regulation/mtf/
Alternative Trading Systems | Desjardins Online Brokerage – Disnat, accessed on April 21, 2025, https://www.disnat.com/en/learning/trading-basics/dbulletin/alternative-trading-systems
Regulation ATS for ATSs That Trade U.S. Government Securities, NMS Stock, and Other Securities; Regulation SCI for ATSs That Trade U.S. Treasury Securities and Agency Securities; and Electronic Corporate Bond and Municipal Securities Markets – Federal Register, accessed on April 21, 2025, https://www.federalregister.gov/documents/2020/12/31/2020-21781/regulation-ats-for-atss-that-trade-us-government-securities-nms-stock-and-other-securities?ref=blog.counselstack.com
242 — Regulation ATS — Alternative Trading Systems | DART, accessed on April 21, 2025, https://dart.deloitte.com/USDART/home/accounting/sec/rules-regulations/242-regulations-m-sho-ats-ac/242-regulation-ats-alternative-trading-systems
6279. Alternative Trading Systems | FINRA.org, accessed on April 21, 2025, https://www.finra.org/rules-guidance/rulebooks/finra-rules/6279
Article 18 Trading process and finalisation of transactions in an MTF and an OTF, accessed on April 21, 2025, https://www.esma.europa.eu/publications-and-data/interactive-single-rulebook/mifid-ii/article-18-trading-process-and
www.cftc.gov, accessed on April 21, 2025, https://www.cftc.gov/LearnAndProtect/AdvisoriesAndArticles/fraudadv_binaryoptions.html#:~:text=A%20binary%20option%20is%20a,fall%20below%20a%20specified%20amount.
CFTC/SEC Investor Alert: Binary Options and Fraud, accessed on April 21, 2025, https://www.cftc.gov/LearnAndProtect/AdvisoriesAndArticles/fraudadv_binaryoptions.html
Binary Options Fraud – FBI, accessed on April 21, 2025, https://www.fbi.gov/news/stories/binary-options-fraud
What are Binary Options and How Do They Work? – Nadex, accessed on April 21, 2025, https://www.nadex.com/learning/what-are-binary-options-and-how-do-they-work/
Binary options | Investor.gov, accessed on April 21, 2025, https://www.investor.gov/introduction-investing/investing-basics/glossary/binary-options
Investor Alert – Ohio.gov, accessed on April 21, 2025, https://dam.assets.ohio.gov/image/upload/com.ohio.gov/documents/secu_BinaryOptionsAlert.pdf
Binary options – Emissions-EUETS.com, accessed on April 21, 2025, https://www.emissions-euets.com/internal-electricity-market-glossary/2060-binary-options
Product intervention measures for retail binary options Financial Conduct Authority (FCA) RPC rating: validated – GOV.UK, accessed on April 21, 2025, https://assets.publishing.service.gov.uk/media/5d1df9c340f0b609f39009e5/RPC-4371_1_-HMT-FCA_-_product_intervention_measures_for_retail_binary_options_-_IA_f__opinion.pdf
What are Binary Options and How to Trade? | Dukascopy Bank SA, accessed on April 21, 2025, https://www.dukascopy.com/swiss/english/binary-options/what-are-binary-options/concept/
What Are Binary Options: Definition, How Do They Work, and Example | LiteFinance, accessed on April 21, 2025, https://www.litefinance.org/blog/for-beginners/what-are-binary-options/
Binary Options When Investment Becomes Gambling – Shariyah Review Bureau, accessed on April 21, 2025, https://shariyah.net/binary-options-when-investment-becomes-gambling/
Beware of Off-Exchange Binary Options Trades | CFTC, accessed on April 21, 2025, https://www.cftc.gov/LearnAndProtect/AdvisoriesAndArticles/beware_of_off_exchange_binary_options.htm
FREQUENTLY ASKED QUESTIONS – | European Securities and Markets Authority, accessed on April 21, 2025, https://www.esma.europa.eu/sites/default/files/library/esma71-98-125_faq_esmas_product_intervention_measures.pdf
Central Bank of Ireland Binary Options Intervention Measure pursuant to Article 42 of Regulation (EU) No 600/2014 of the European Parliament, accessed on April 21, 2025, https://www.centralbank.ie/docs/default-source/Regulation/industry-market-sectors/investment-firms/mifid-firms/regulatory-requirements-and-guidance/central-bank-binary-options-intervention-measure.pdf
PS19/11: Product intervention measures for retail binary options | FCA, accessed on April 21, 2025, https://www.fca.org.uk/publications/policy-statements/ps19-11-product-intervention-measures-retail-binary-options
The Basics of Investing In Binary Options, accessed on April 21, 2025, https://dfi.wa.gov/financial-education/information/basics-investing-binary-options
A Guide to Trading Binary Options in the US – Investopedia, accessed on April 21, 2025, https://www.investopedia.com/articles/active-trading/061114/guide-trading-binary-options-us.asp
www.investor.gov, accessed on April 21, 2025, https://www.investor.gov/introduction-investing/investing-basics/glossary/binary-options#:~:text=Unlike%20other%20types%20of%20options,cash%20or%20nothing%20at%20all.
Binary Option: Definition, How They Trade, and Example – Investopedia, accessed on April 21, 2025, https://www.investopedia.com/terms/b/binary-option.asp
UK to Redefine Binary Options from Gambling to Investing – Finance Magnates, accessed on April 21, 2025, https://www.financemagnates.com/binary-options/regulation/uk-to-change-binary-options-legal-status-from-gambling-to-investing/
How to Start Your Binary Options Broker? – Quadcode, accessed on April 21, 2025, https://quadcode.com/blog/how-to-start-your-binary-options-broker
Investor Alert: Binary options and Fraud – SEC.gov, accessed on April 21, 2025, https://www.sec.gov/investor/alerts/ia_binary.pdf
Legal difference between Binary Options regulated by CFTC and gambling regulated by U. S. member states – Law Stack Exchange, accessed on April 21, 2025, https://law.stackexchange.com/questions/77432/legal-difference-between-binary-options-regulated-by-cftc-and-gambling-regulated
States’ Big Gamble on Sports Betting – Scholarly Commons @ UNLV Law, accessed on April 21, 2025, https://scholars.law.unlv.edu/context/glj/article/1191/viewcontent/JONES_FINAL_p.53_95.pdf
Binary Options, Fraud and Money Laundering – ACAMS Today, accessed on April 21, 2025, https://www.acamstoday.org/binary-options-fraud-and-money-laundering/
FINANCIAL INFORMATION FORUM – finra, accessed on April 21, 2025, https://www.finra.org/sites/default/files/NoticeComment/Financial%20Information%20Forum_Howard%20Meyerson_9.20.22_cmt%20ltr%20on%20OTC.pdf
PERG 13.4 Financial instruments – FCA Handbook, accessed on April 21, 2025, https://www.handbook.fca.org.uk/handbook/PERG/13/4.html
ESMA agrees on product intervention measures in relation to CFDs and binary options offered to retail investors. June 2018. – Boletín Internacional, accessed on April 21, 2025, https://boletininternacionalcnmv.es/en/esma-en/investor-protection-en/esma-agrees-on-product-intervention-measures-in-relation-to-cfds-and-binary-options-offered-to-retail-investors/
Product Intervention – | European Securities and Markets Authority, accessed on April 21, 2025, https://www.esma.europa.eu/investor-corner/product-intervention
ESMA agrees to prohibit binary options and restrict CFDs to protect retail investors, accessed on April 21, 2025, https://www.esma.europa.eu/press-news/esma-news/esma-agrees-prohibit-binary-options-and-restrict-cfds-protect-retail-investors
Binary Options Fraud | CFTC, accessed on April 21, 2025, https://www.cftc.gov/BinaryOptionsFraud/index.htm
Final Report – | European Securities and Markets Authority, accessed on April 21, 2025, https://www.esma.europa.eu/sites/default/files/library/esma35-43-2134_technical_advice_to_the_ec_on_product_intervention.pdf
ESMA renews binary options prohibition for a further three months from 2 April 2019, accessed on April 21, 2025, https://www.esma.europa.eu/press-news/esma-news/esma-renews-binary-options-prohibition-further-three-months-2-april-2019
PS19/11: Product intervention measures for retail binary options – Financial Conduct Authority, accessed on April 21, 2025, https://www.fca.org.uk/publication/policy/ps19-11.pdf
Binary option ban extended, subject to certain exclusions – Taylor Wessing, accessed on April 21, 2025, https://www.taylorwessing.com/en/insights-and-events/insights/2018/09/binary-option-ban-extended-subject-to-certain-exclusions
Notice of ESMA’s Product Intervention Renewal Decision in relation to binary options, accessed on April 21, 2025, https://www.esma.europa.eu/press-news/esma-news/notice-esma%E2%80%99s-product-intervention-renewal-decision-in-relation-binary-option-1
ESMA adopts final product intervention measures on CFDs and binary options, accessed on April 21, 2025, https://www.esma.europa.eu/press-news/esma-news/esma-adopts-final-product-intervention-measures-cfds-and-binary-options
How to Start a Binary Options Broker in 2024 – Liquidity Provider, accessed on April 21, 2025, https://liquidity-provider.com/articles/how-to-start-a-binary-options-broker-detailed-guide/
Binary Options Brokerage License – Fast Offshore, accessed on April 21, 2025, https://fastoffshore.com/what-we-do/packaged-services/binary-options-brokerage-license/
Regulation in Crypto and Binary Options Markets: What You Need to Know, accessed on April 21, 2025, https://www.fingerlakes1.com/2024/10/17/regulation-in-crypto-and-binary-options-markets-what-you-need-to-know/
Regulation and Security in Binary Options Trading – The Rocky Mountain Collegian, accessed on April 21, 2025, https://collegian.com/sponsored/2023/12/regulation-and-security-in-binary-options-trading/