Prior express consent

Prior consent, express prior consent, prior express consent, and MiFID

Is “express prior consent” — a MiFID II expression, the same thing as “prior express consent” also a MiFID II expression featuring a lot in the context of best execution?

Who can say? And what of plain old “prior consent” — also a MiFID II expression — admitting as it does, of nods, winks, raised eyebrows and putting two and two together?

Let CESR explain:

Q21 What is the difference between “consent” and “express consent”?

21.1 Where MiFID requires “prior express consent”, CESR considers that this entails an actual demonstration of consent by the client which may be provided by signature in writing or an equivalent means (electronic signature), by a click on a web page or orally by telephone or in person, with appropriate record keeping in each case.

Prior normal consent, on the other hand, does not. You can deem it by conduct — the placement of an order, for example. Or a nod, wink, waggle of the head or unambiguous bodily action.