The Regulation applies only to OTC instruments. A consumer will thus continue to be able to hedge against certain risks (e.g. exchange rate risk) by using a derivative that is traded on a regulated market or a multilateral trading facility.
Moreover, the Regulation applies only to distribution to consumers. Distribution to a natural person who carries out a commercial, business, trade or professional activity does not fall within the scope of the Regulation if the person is acting outside the capacity of managing his or her own private assets. Under the Regulation, a natural person will be able at all times to hedge his or her professional activity with OTC derivatives.
The Regulation likewise does not apply where derivative instruments are distributed to consumers who have asked their financial institution to treat them as professional investors in application of Annex A, II of the Royal Decree of 3 June 2007 laying down rules for the transposition of the Directive on Markets in Financial Instruments.