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|13/10/2011||2011/342||Opinion- Practical arrangements for the late transposition of the UCITS IV Directive||Fund Management||Opinion||PDF
|20/11/2012||2012/721||Opinion on Article 50(2)(a) of the UCITS Directive||Fund Management||Opinion||PDF
|01/08/2013||2013/1072||Practical arrangements for the late transposition of the AIFMD||Fund Management||Opinion||PDF
|The European Securities and Markets Authority (ESMA) has published an Opinion on arrangements for the late imposition of the AIFMD. The scope of the opinion is confined to the provision of collective portfolio management services. Arrangements before implementation of the Directive in all Member States Notification of marketing of EU AIFs when the host MS of the AIFM has not transposed the Directive (Articles 31 and 32 of the Directive) ESMA believes that, if the Directive has been transposed in the home MS of the AIFM, the competent authority of the host MS of the AIFM (Article 32) or home MS of the AIFM (Article 31) may not refuse a valid notification under the Directive on the ground that the Directive has not yet been transposed in the host MS. This applies irrespective of whether the marketing is done using the freedom to provide services or by means of a branch. Management passport (Article 33 of the Directive) ESMA believes that AIFMs established in a MS that has transposed the Directive should be able to manage an EU AIF via the management passport, both using the freedom to provide services or by means of a branch, in a MS where the Directive has not been transposed, irrespective of the provisions currently in place in such jurisdiction since the relevant provisions of the Directive are of a self-executing nature, and provided the AIFM is authorised to manage that type of AIF in accordance with Article 33(1) of the AIFMD. Any local restrictions on AIFMs that are not in accordance with the AIFMD will need to be disapplied.|
|01/10/2013||2013/1340||Collection of information for the effective monitoring of systemic risk under Article 24(5), first sub-paragraph, of the AIFMD||Fund Management||Opinion||PDF
|24/04/2014||2013/922||Compliance table- suitability guidelines||MiFID - Investor Protection, Guidelines and Technical standards||Compliance table||PDF
|24/04/2014||2013/923||Compliance table- compliance guidelines||MiFID - Investor Protection, Guidelines and Technical standards||Compliance table||PDF
|07/10/2014||2014-1213||Guidelines compliance table for Guidelines on remuneration policies and practices (MiFID)||MiFID - Investor Protection||Compliance table||PDF
|07/02/2014||2014/146||MiFID practices for firms selling complex products||MiFID - Investor Protection, Warnings and publications for investors||Opinion||PDF
|20/06/2014||2014/264||Guidelines compliance table- Guidelines on model MoU concerning consultation, cooperation and the exchange of information related to the supervision of AIFMD entities (ESMA/2013/998)||Fund Management, Guidelines and Technical standards||Compliance table||PDF
|27/03/2014||2014/332||Structured Retail Products- Good practices for product governance arrangements||MiFID - Investor Protection, Innovation and Products||Opinion||PDF
|Legal basis 1. Regulation (EU) No 1095/2010 (ESMA Regulation) sets out the European Securities and Markets Authority’s (ESMA) scope of action, tasks and powers which include “enhancing customer protection”, and “foster[ing] investor protection”. 2. In order to continue delivering on this investor protection statutory objective, ESMA is issuing this opinion on certain aspects linked to the manufacturing and distribution of structured retail products (SRP). This opinion takes into account relevant work done in this field both at European and interna-tional level. 3. This opinion is without prejudice to the requirements for the provision of investment services and activities established in the Markets in Financial Instruments Directive (MiFID) and its implementing measures (notably, Directive 2006/73/EC), the regulatory developments arising from the MiFID review or existing product rules that may apply to SRPs. 4. ESMA’s competence to deliver an opinion is based on Article 29(1) (a) of the ESMA Regulation. In accordance with Article 44(1) of the ESMA Regulation, the Board of Supervisors has adopted this opinion. Background 5. In its July 2013 report on ‘Retailisation in the EU’ , ESMA highlighted that, from a consumer protec-tion perspective, retail investors may face difficulties in understanding the drivers of risks and returns of structured products. If retail investors do not properly understand the risk and reward profile of structured products, and if the products are not properly assessed against the risk appetite of retail investors, retail investors might be exposed to unexpected losses and this might lead to complaints, reputational risks for manufacturers and distributors, and a loss of confidence in the regulatory framework and, more broadly, in financial markets. 6. In 2013, ESMA mapped the measures adopted in the EU Member States in relation to complex products in order to identify issues and to better understand the rationale behind national initiatives (by looking at similarities and differences in the various approaches, and reviewing how complexity has been treated in the different EU Members States). 7. As a result, ESMA has developed a broad set of non-exhaustive examples of good practices, attached as Annex 1 hereto, illustrating arrangements that firms - taking into account the nature, scale and complexity of their business - could put in place to improve their ability to deliver on investor protection regarding, in particular, (i) the complexity of the SRPs they manufacture or distribute, (ii) the nature and range of the investment services and activities undertaken in the course of that business, and (iii) the type of investors they target. These good practices should also be a helpful tool for competent authorities in carrying out their supervisory action. Opinion 8. ESMA considers that sound product governance arrangements are fundamental for investor protec-tion purposes, and can reduce the need for product intervention actions by competent authorities. 9. ESMA considers that, when supervising firms manufacturing or distributing an SRP, competent authorities should promote, in their supervisory approaches, the examples of good practices for firms set out in Annex 1 hereto. 10. Although the good practices set out in Annex 1 hereto focus on structured products sold to retail investors, ESMA considers that they may also be a relevant reference for other types of financial in-struments (such as asset-backed securities, or contingent convertible bonds), as well as when financial instruments are being sold to professional clients. 11. The exposure to risk is an intrinsic feature of investment products. The good practices set out in Annex 1 refer to product governance arrangements and do not (and cannot) aim at removing investment risk from products.|
|30/07/2015||2015/1235||ESMA's opinion to the European Parliament, Council and Commission and responses to the call for evidence on the functioning of the AIFMD EU passport and of the National Private Placement Regimes||Fund Management||Opinion||PDF
|AIFMD and the request to ESMA for an Opinion In accordance with Articles 36 and 42 of the AIFMD, non-EU AIFMs and non-EU AIFs managed by EU AIFMs are subject to the NPPR of each of the Member States where the AIFs are marketed or managed. However, the AIFMD makes provision for the passport, which is currently reserved to EU AIFMs and AIFs, to be potentially extended in future. Article 67(1) of the AIFMD establishes that, by 22 July 2015, ESMA shall issue to the European Parliament, the Council and the Commission the following: An opinion on the functioning of the passport for EU AIFMs pursuant to Articles 32 and 33 of the AIFMD and on the functioning of the national private placement regimes set out in Articles 36 and 42 of the AIFMD. Advice on the application of the passport to non-EU AIFMs and AIFs in accordance with the rules set out in Article 35 and Articles 37 to 41 of the AIFMD. Within three months of receipt of positive advice and an opinion from ESMA, and taking into account the criteria of Article 67(2) and the objectives of the AIFMD, the Commission should adopt a delegated act specifying the date when the rules set out in Article 35 and 37 to 41 of the AIFMD become applicable in all Member States. As a consequence, the EU passport would be extended to non-EU AIFs and non-EU AIFMs. In order to produce this opinion and advice, ESMA must look into the elements listed in Article 67(2) and (4) of the AIFMD , notably on the basis of the information provided by the national competent authorities (NCAs) about the EU and non-EU AIFMs under their supervision. Indeed, Article 67(3) of the AIFMD requires NCAs to provide information to ESMA quarterly as from 22 July 2013. ESMA has received input from NCAs for the periods covering 22 July 2013 to 31 March 2014, 1 April to 30 June 2014, 1 July to 30 September 2014, 1 October to 31 December 2014, and 1 January to 31 March 2015. In order to supplement the input provided by NCAs via the quarterly surveys, ESMA launched a call for evidence in November 2014 aimed at gathering information from EU and non-EU stakeholders on the functioning of the EU passport, the NPPRs and the potential extension of the AIFMD passport to non-EU countries. ESMA received 67 responses (including 15 confidential responses), from 13 non-EU Authorities, 21 EU and non-EU trade associations of asset managers, 17 EU and non-EU asset managers, and 16 other trade associations and private firms (e.g. providers of services for funds, law firms etc). Summary of the opinion In relation to the timing of the assessment of the functioning of the EU passport, ESMA considers that the delay in the implementation of the AIFMD together with the delay in the transposition in some Member States make a definitive assessment difficult. ESMA would see merit in the preparation of another opinion on the functioning of the passport after a longer period of implementation in all Member States. However, even at this early stage, ESMA has identified several issues in relation to the use of the EU passport. These issues include: i) divergent approaches with respect to marketing rules, including heterogeneity of fees charged by the NCAs where the AIFs are marketed and the definition of what constitutes a “professional investor”; ii) varying interpretations of what activities constitute “marketing” and “material changes” under the AIFMD passport in the different Member States. With that in mind, ESMA sees merit in greater convergence in the definition of these terms. Nevertheless, ESMA is of the view that there is insufficient evidence to indicate that the AIFMD EU passport has raised major issues in terms of the functioning and implementation of the AIFMD framework. In relation to the timing of the assessment of the functioning of the NPPRs, ESMA considers that the delay in the implementation of the AIFMD together with the delay in transposition in some Member states make a definitive assessment difficult. ESMA would see merit in the preparation of another opinion on the functioning of the NPPR Regime after a longer period of implementation has passed in all Member States (although this is linked to the decision to be taken by the European Parliament, the Council and the Commission on whether to extend the passport to one or more non-EU countries in the meantime). ESMA is of the view that there is insufficient evidence to indicate that the NPPRs have raised major issues in terms of the functioning and implementation of the AIFMD framework.|
|14/08/2015||2015/1261||Guidelines compliance table- Guidelines on the application of definitions C6 and C7 under MiFID I||MiFID - Secondary Markets||Compliance table|
|05/01/2016||2015/1791||Peer Review Report Compliance with SSR as regards Market Making activities||Supervisory convergence||Report||PDF
|22/05/2015||2015/880||ESMA Opinion to the EU institutions on the impact of EMIR on UCITS||Fund Management||Opinion||PDF
|16/02/2016||2016/297||Follow-up MMF||Fund Management, Supervisory convergence||Report||PDF
|29/03/2016||2016/410||ESMA Report on Enforcement and Regulatory Activities of Accounting Enforcers in 2015||Corporate Disclosure, IFRS Supervisory Convergence, Supervisory convergence||Report||PDF
This report provides an overview of the activities of the European Securities and Markets Authority (ESMA) and the accounting enforcers in the European Economic Area (EEA), thereafter, ‘European enforcers’, when examining compliance of financial information provided by issuers listed on regulated markets with the applicable financial reporting framework in 2015. It also provides an overview of the main activities performed at European level, quantitative information on enforcement activities in Europe as well as ESMA’s contribution to the development of the single rule book in the area of financial reporting. In addition, it also outlines ESMA’s activities for 2016 in the area of corporate reporting following its Supervisory Convergence Work Programme.
Following the implementation of the ESMA Guidelines on enforcement of financial information (hereafter the Guidelines on enforcement), ESMA and European enforcers have further strengthened supervisory convergence in the area of enforcement of financial information. The Guidelines on enforcement significantly contributed to the alignment of supervisory approaches/procedures through the use of harmonised key concepts for examinations, of a common set of enforcement priorities, of common rules for enforcement actions and of a single set of criteria for identifying accounting matters for which coordination at European level within ESMA is needed. In the last area, the number of accounting issues discussed by the enforcers before taking enforcement decisions increased significantly (65 emerging issues in 2015 vs 47 in 2014) and contributed to enhancing supervisory convergence as enforcers should take into account the outcome of these discussions when taking decisions .
In 2015 ESMA and European enforcers evaluated the level of compliance with IFRS in the areas identified as common enforcement priorities for the 2014 annual financial statements on a sample of 189 issuers. This assessment resulted in 40 enforcement actions being taken on shortcomings in the disclosures of assumptions and judgements supporting the recognition of deferred tax assets arising from tax losses, when assessing control or classifying joint arrangements.
As in previous years, ESMA together with European enforcers identified and included in their supervisory practices a set of common enforcement priorities significant for European issuers when preparing their 2015 IFRS financial statements. These priorities include the impact of the financial markets’ conditions in IFRS financial statements, presentation of the statement of cash flows and related disclosures as well as the fair value measurement of non-financial assets and related disclosures. Specific references to some of the 2014 common priorities and to the new IFRS requirements, notably on IFRS 9 Financial Instruments and IFRS 15 Revenue from Contracts with Customers are also part of these priorities.
As a response to increased concerns in the markets, ESMA issued Guidelines on Alternative Performance Measures (hereafter the Guidelines on APMs) which are aimed at contributing to the publication of transparent, unbiased and comparable information by European issuers on their financial performance. The Guidelines on APMs will apply to APMs disclosed by issuers when publishing regulated information or persons responsible for the prospectus. European enforcers had to adapt their supervisory procedures and declare their compliance to these guidelines.
Also as part of the supervisory convergence activities, ESMA issued an Opinion on the application of the IFRS requirements on the cash contributions to Deposit Guarantee Schemes (DGS) in order to address the divergence in the application and enforcement in the accounting treatment applicable to these contributions and to prevent it from becoming widespread.
ESMA published a Statement referring to principles relevant for improving the quality of disclosures as a response to concerns expressed by users on the overload, lack of completeness or relevance of the information provided in the financial statements.
Finally, European enforcers examined the interim or annual financial statements of approximately 1,200 issuers representing an average examination rate of 20% of all IFRS issuers with securities listed on regulated markets, out of which 14% related to unlimited scope examinations and 6% to focused examinations. As a result of these activities, European enforcers took actions addressing material departures against 273 issuers, representing around 25% of the selected sample. The main deficiencies were identified in the areas of financial statements presentation, impairment of non-financial assets and accounting for financial instruments.
Single Rule Book
ESMA actively participated to the accounting standard setting process by providing European enforcers’ positions on all major new standards issued by the International Accounting Standards Board (IASB) and by contributing to the discussions in the EFRAG Board and the Technical Expert Group (EFRAG TEG) meetings. Notably, ESMA provided specific input to the due process and endorsement advices on IFRS 9, in aspects related to investor protection and financial stability as well as on its interaction with IFRS 4 Insurance Contracts. In addition, ESMA also contributed to the consistent application of IFRS by engaging with the IASB and the IFRS Interpretations Committee (IFRS IC) when relevant issues were identified by enforcers and where a lack of clarity in IFRS could contribute to their divergent application.
In accordance with its mandate under the Transparency Directive, ESMA has submitted to the European Commission for endorsement the draft Regulatory Technical Standards (RTS) on the European Electronic Access Point (EEAP) and published the consultation paper on the draft RTS on European Single Electronic Format (ESEF).
ESMA published its Supervisory Convergence Work Programme which covers, among other topics, the activities of accounting enforcers. In addition to the regular activities, ESMA envisages to start carrying out peer reviews on some of the ESMA Guidelines on enforcement, to publish statements on the implementation of new major IFRS and to develop supervisory briefings to align procedures of European enforcers when monitoring and enforcing the Guidelines on APMs and disclosures in the financial statements.
|31/03/2016||2016/411||Guidelines on sound remuneration policies under the UCITS Directive and AIFMD||Fund Management||Report||PDF
Article 14a(4) of Directive 2009/65/EC (“UCITS Directive”), as amended by Directive 2014/91/EU (“UCITS V Directive”) provides that ESMA shall issue guidelines addressed to competent authorities or financial market participants concerning the application of the remuneration principles set out under Article 14b of the UCITS Directive (“UCITS Remuneration Guidelines”). This final report sets out the final text of the guidelines on remuneration policies required by the UCITS V Directive and also provides for a targeted revision of the Guidelines on sound remuneration policies under the AIFMD (ESMA/2013/232) (“AIFMD Remuneration Guidelines”), which were originally published on 3 July 2013.
|07/04/2016||2016/572||Compliance table- Guidelines on key concepts of the AIFMD||Fund Management, Guidelines and Technical standards||Compliance table||PDF
|12/04/2016||2016/596||Opinion on loan origination||Fund Management||Opinion||PDF
|12/04/2016||2016/602||Compliance table- Guidelines on ETFs and other UCITS issues||Fund Management, Guidelines and Technical standards||Compliance table||PDF