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Date Ref. Title Section Type Download Info Summary Related Documents Translated versions
14/09/2011 2011/288 Call for evidence- Empty voting , , Consultation Paper PDF
81.13 KB
22/11/2011 2011/219 ESMA comment letter on the EU Commission Green Paper- The EU Corporate Governance Framework , Letter PDF
496.17 KB
25/11/2011 2011/397 Public statement on sovereign debt in IFRS financial statements , , , Statement PDF
189.46 KB
22/03/2012 2012/212 Discussion Paper- An Overview of the Proxy Advisory Industry. Considerations on Possible Policy Options , Consultation Paper PDF
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This Discussion Paper focuses on the development of the proxy advisory industry in Europe, which mainly serves institutional investors such as asset managers, mutual funds and pension funds. Following its fact-finding work in 2011, ESMA recognises the proxy advisory industry within Europe is, or is expected to be, growing in prominence and investors are, or are expected to be, increasingly using proxy advisor services. In this paper ESMA identifies several key issues related to the proxy advisory market which may have an impact on the proper functioning of the voting process. The range of policy options that ESMA will consider, and on which it seeks further input from market participants, consists of four broad areas, including: 1.    No EU-level action at this stage 2.    Encouraging Member States and/or industry to develop standards 3.    Quasi-binding EU-level regulatory instruments 4.    Binding EU-level legislative instruments ESMA will consider these options based on the feedback it receives from market participants, and, if appropriate, will undertake further policy action, either directly or by providing an opinion to the European Commission. The reason to bring up some policy options is due to the fact that proxy advisors are currently not regulated at a pan-European level. Nevertheless, there are relevant European rules that apply to investors (e.g. for UCITS management companies when exercising voting rights). In addition, there are also well-recognised corporate governance standards that apply to issuers at a national level (based on the “comply or explain approach”) and some complements to improve standards of stewardship among investors. All feedback received from this Discussion Paper will be duly considered. ESMA expects to publish a feedback statement in Q4 of 2012 which will summarise the responses received and will state ESMA’s view on whether there is a need for policy action in this area.
27/03/2012 2012/224 ESMA seeks views on proxy advisors , , Press Release PDF
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ESMA published last Thursday a discussion paper (ESMA/2012/212) on proxy advisors active in the European Union, seeking views of stakeholders. The paper aims at giving an overview of the state and structure of the market, advisor’s methodologies, and on possible policy options. Generally, proxy advisors assist (institutional) investors and asset managers in their voting policy and strategy.  Currently, there are no rules in place on a pan-European basis regarding proxy advisors. ESMA will use the feedback received on this paper to publish a feedback statement in Q4 of 2012, which will also include ESMA’s view on whether there is a need for policy action in the area.
16/11/2012 2012/752 Call for expressions of interest: Consultative Working Group for ESMA’s Financial Innovation Standing Committee Reference PDF
141.98 KB
To apply, please use the below Application form
19/02/2013 2013/84 Feedback statement on the consultation regarding the role of the proxy advisory industry , Statement PDF
559.31 KB
19/02/2013 2013/240 ESMA recommends EU Code of Conduct for proxy advisor industry , , Press Release PDF
140.27 KB
11/03/2013 2013/280 Vacancy notice- Chair of Committee drafting a proxy advising industry Code of Conduct , Reference PDF
102.91 KB
12/11/2013 2013/1642 Information on shareholder cooperation and acting in concert under the Takeover Bids Directive , Statement PDF
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The European Securities and Markets Authority (ESMA) has published a statement on practices governed by the Takeover Bid Directive (TBD), focused on shareholder cooperation issues relating to acting in concert and the appointment of board members. The statement contains a White List of activities that shareholders can cooperate on without the presumption of acting in concert. It also contains information on how shareholders may cooperate in order to secure board member appointments by setting out factors that national authorities may take into account when considering whether shareholders are acting in concert. The statement is in response to a request by the European Commission for clarity on these issues, following its 2012 report on the application of the TBD. It is based on information collected about the TBD’s application and common practices across the European Economic Area (EEA). The statement was prepared by the Takeover Bids Network, a permanent working group, under ESMA’s auspices, that promotes the exchange of information on practices and application of the TBD across EEA.
12/11/2013 2013/1643 Cover Note- Public statement containing information on shareholder cooperation and acting in concert under the Takeover Bids Directive (ESMA/2013/1642) , Reference PDF
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In accordance with its mandate to take appropriate action in the context of takeover bids as per Article 1.3 of Regulation (EU) 1095/2010 (ESMA Regulation), ESMA is releasing a public statement on shareholder cooperation and acting in concert under the Takeover Bids Directive (Directive 2004/25/EC). This statement has been prepared following the review and report by the European Commission on the application of the Takeover Bids Directive and is based on information collected about the practices and application of that Directive. The statement has been prepared in order to help shareholders identify activities in relation to which they can cooperate (insofar as those activities are available to them under national company law), without that cooperation, in and of itself, leading to a conclusion that the shareholders are acting in concert and thus being at risk of having to make a mandatory bid under the Takeover Bids Directive. These activities are presented in the statement in the form of a “White List”. The statement has been prepared by the Takeover Bids Network, a permanent working group operating under the auspices of ESMA that promotes exchange of information on practices and application of the Takeover Bids Directive across the European Economic Area, thereby strengthening a common supervisory culture. The Takeover Bids Network is a specialist group composed of the national competent authorities appointed under the Takeover Bids Directive. The competent authorities represented on the ESMA Board of Supervisors are not in all cases appointed as competent authorities within the Takeover Bids Directive. The authorities not represented on the Board of Supervisors but competent within the area of takeovers are the Austrian Takeover Commission, the Irish Takeover Panel, the Oslo Stock Exchange of Norway, the Takeover Panel of Sweden and the Takeover Panel of the United Kingdom. These five authorities have contributed to the public statement and will have regard to it in the same manner as the other members of the Takeover Bids Network when assessing whether shareholders are acting in concert under their national takeover rules.
12/11/2013 2013/1645 ESMA clarifies shareholder cooperation in takeover situations , , Press Release PDF
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ESMA clarifies shareholder cooperation in takeover situations The European Securities and Markets Authority (ESMA) has published a statement on practices governed by the Takeover Bid Directive (TBD), focused on shareholder cooperation issues relating to acting in concert and the appointment of board members. The statement contains a White List of activities that shareholders can cooperate on without the presumption of acting in concert. It also contains information on how shareholders may cooperate in order to secure board member appointments by setting out factors that national authorities may take into account when considering whether shareholders are acting in concert. The statement is in response to a request by the European Commission for clarity on these issues, following its 2012 report on the application of the TBD. It is based on information collected about the TBD’s application and common practices across the European Economic Area (EEA). The statement was prepared by the Takeover Bids Network, a permanent working group, under ESMA’s auspices, that promotes the exchange of information on practices and application of the TBD across EEA. Steven Maijoor, ESMA Chair, said: “Today’s statement means that shareholders can now be confident that they can expect authorities to take a consistent approach across the EEA to their cooperative activities. This consistency should in turn provide the reassurance needed by shareholders for the effective, sustainable engagement that is one of the cornerstones of listed companies’ corporate governance model allowing them to hold their boards to account. “ESMA believes that ensuring a consistent and convergent supervisory approach to this issue will be instrumental in affording equality of treatment to shareholders and investors across the EEA.” National competent authorities will have regard to the White List when determining whether shareholders are persons acting in concert under national takeover rules, but will also take into account all other relevant factors in making their decisions. Shareholder cooperation and acting in concert - The White List When shareholders cooperate to engage in any of the activities listed below, that cooperation will not, in and of itself, lead to a conclusion that the shareholders are acting in concert: 1. entering into discussions with each other about possible matters to be raised with the company’s board; 2. making representations to the company’s board about company policies, practices or particular actions that the company might consider taking; 3. other than in relation to the appointment of board members, exercising shareholders’ statutory rights; 4. other than in relation to a resolution for the appointment of board members and insofar as such a resolution is provided for under national company law, agreeing to vote the same way on a particular resolution put to a general meeting. If shareholders cooperate in an activity not included on the White List, this will also not result in an automatic assumption that they are acting in concert. Each case will be determined on its own particular facts. Cooperation in relation to the appointment of members of the board of a company The White List does not include any activity relating to cooperation on board appointments, due to differences in Member State approaches towards determining whether shareholders who cooperate in relation to board appointments are acting in concert. However, shareholders may wish to cooperate in order to secure board members’ appointment in a company in which they have invested. This cooperation might take the form of: 1. entering into an agreement or arrangement (informal or formal) to exercise their votes in the same way in order to support the appointment of one or more board members; 2. tabling a resolution to remove one or more board members and replace them with one or more new board members; or 3. tabling a resolution to appoint one or more additional board members. The statement therefore indicates which factors may be considered when assessing whether such cooperation is indeed an act of acting in concert. ESMA will keep the public statement under review in order to ensure that it continues to reflect accurately the practices and application of the TBD in the Member States. 2013/1642 Public Statement - Information on shareholder cooperation and acting in concert under the Takeover Bids Directive. 2013/1643 Cover Note to the Public Statement
27/03/2014 2014/332 Structured Retail Products- Good practices for product governance arrangements , Opinion PDF
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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.
27/03/2014 2014/334 ESMA issues good practices for structured retail product governance , Press Release PDF
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The European Securities and Markets Authority (ESMA) has published an opinion on structured retail products, setting out good practices for firms when manufacturing and distributing these products.
31/07/2014 2014/944 Potential Risks Associated with Investing in Contingent Convertible Instruments , Statement PDF
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The European Securities and Markets Authority (ESMA) is issuing this statement to clarify to institutional investors risks from a newly emerging asset class referred to by most market participants as contingent convertibles instruments (CoCos). If they work as intended in a crisis CoCos will play an important role to inhibit risk transfer from debt holders to taxpayers. They along with standards to improve the quality and quantity of bank capital reflect a considerate response to the former regulatory capital framework. However, it is unclear as to whether investors fully consider the risks of CoCos and correctly factor those risks into their valuation. ESMA believes there are specific risks to CoCos and that investors should take those risks into consideration prior to investing in these instruments.
18/11/2014 2014/1371 Call for expressions of interest: Consultative Working Group for ESMA’s Financial Innovation Standing Committee Reference PDF
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ESMA today launches a process to renew the composition of the Consultative Working Group (‘CWG’) for the Financial Innovation Standing Committee (’FISC’). ESMA is therefore calling for expressions of interest from stakeholders. Application procedure, closing date Relevant stakeholders meeting the required selection criteria and wishing to apply for a position on the CWG are invited to submit, in English: a completed application form (see separate document), and a detailed curriculum vitae (CV), preferably in the EU CV format - the link to the template for this is: http://europass.cedefop.europa.eu/europass/home/hornav/Downloads/Europas... It is optional for applicants to attach a motivation letter (2 pages maximum). Unclear or incomplete applications will not be considered. Applications must be submitted by email using the application form by no later than 31 December 2014 to the following email addresses: patrick.armstrong@esma.europa.eu and anne.chone@esma.europa.eu.
18/12/2014 2014/1378 Opinion- Investment-based crowdfunding Opinion PDF
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Crowdfunding is a means of raising finance for projects from ‘the crowd’ often by means of an internet-based platform through which project owners ‘pitch’ their idea to potential backers, who are typically not professional investors.  It takes many forms, not all of which involve the potential for a financial return.  ESMA’s focus is on crowdfunding which involves investment, as distinct from donation, non-monetary reward or loan agreement.  Crowdfunding is relatively young and business models are evolving. EU financial services rules were not designed with the industry in mind. Within investment-based crowdfunding a range of different operational structures are used so it is not straightforward to map crowdfunding platforms’ activities to those regulated under EU legislation. Member States and NCAs have been working out how to treat crowdfunding, with some dealing with issues case-by-case, some seeking to clarify how crowdfunding fits into existing rules and others introducing specific requirements.To assist NCAs and market participants, and to promote regulatory and supervisory convergence, ESMA has assessed typical investment-based crowdfunding business models and how they could evolve, risks typically involved for project owners, investors and the platforms themselves and the likely components of an appropriate regulatory regime. ESMA then prepared a detailed analysis of how the typical business models map across to the existing EU legislation, set out in this document.
18/12/2014 2014/1560 Advice- Investment-based crowdfunding Final Report PDF
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Crowdfunding is a means of raising finance for projects from ‘the crowd’ often by means of an internet-based platform through which project owners ‘pitch’ their idea to potential backers, who are typically not professional investors.  It takes many forms, not all of which involve the potential for a financial return.  ESMA’s focus is on crowdfunding which involves investment, as distinct from donation, non-monetary reward or loan agreement.Crowdfunding is relatively young and business models are evolving. EU financial services rules were not designed with the industry in mind.  Within investment-based crowdfunding a range of different operational structures are used so it is not straightforward to map crowdfunding platforms’ activities to those regulated under EU legislation. Member States and NCAs have been working out how to treat crowdfunding, with some dealing with issues case-by-case, some seeking to clarify how crowdfunding fits into existing rules and others introducing specific requirements.To assist NCAs and market participants, and to promote regulatory and supervisory convergence, ESMA has assessed typical investment-based crowdfunding business models and how they could evolve, risks typically involved for project owners, investors and the platforms themselves and the likely components of an appropriate regulatory regime. ESMA then prepared a detailed analysis of how the typical business models map across to the existing EU legislation, set out in sections 1 to 6 of this document.
18/12/2014 2014/1568 Press Release- Investment-based crowdfunding needs EU-wide common approach , Press Release PDF
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The European Securities and Markets Authority (ESMA) has published an Opinion along with an Advice on Investment-based crowdfunding. The Opinion clarifies the EU rules applicable to crowdfunding, while the Advice highlights issues for consideration by the EU institutions to achieve greater regulatory and supervisory convergence within the EU.The Opinion is addressed to the national competent authorities (NCA) and provides clarity on how crowdfunding business models fit within the existing EU regulatory framework. It outlines how existing EU rules are likely to apply to crowdfunding platforms, depending on the precise business model used. It also provides guidance to NCAs who may be considering how to regulate platforms operating outside the scope of the harmonised EU rules on the key risks inherent to crowdfunding and the key components of a regulatory regime to address them.The Advice, addressed to the EU institutions – Commission, Parliament and Council, highlights the concern that strong incentives currently exist for crowdfunding platforms to structure their business models to fall outside the scope of regulation and asks them to consider policy options to reduce these incentives. Avoiding regulation presents risks to investor protection and makes it harder for platforms to grow their businesses.Steven Maijoor, ESMA Chair, said: “ESMA’s aim is to enable crowdfunding to reach its potential as a source of finance, while ensuring that risks to users of crowdfunding platforms are identified and addressed in a proportionate and convergent way across the EU. “We believe that there are benefits both for investors as well as for platforms by operating inside rather than outside the regulated space. Opinion to National Competent AuthoritiesConsidering the diverse business models used within investment-based crowdfunding and depending on the precise structures used different EU legislation may apply. The Opinion sets out an analysis of how the main business models map across existing EU rules, e.g., the Markets in Financial Instruments Directive (MiFID), the Prospectus Directive, the Directive for Alternative Investment Fund Managers (AIFMD) and other financial and banking regulations. In addition, the Opinion outlines what ESMA believes should be the key components of an appropriate regulatory regime for investment-based crowdfunding activities. ESMA’s Advice to the EU InstitutionsThe Advice to the EU institutions highlights gaps and issues in the current applicable regime where policymakers could consider taking action to ensure there is a regime protecting investors while also fit for purpose for crowdfunding platforms. These gaps and issues include: the impact of the Prospects Directive thresholds; capital requirements and the use of the MiFID optional exemption; and the potential development of a specific EU crowdfunding regime, in particular for those platforms that currently operate outside of the scope of MiFID The Opinion and Advice have been prepared in collaboration with and input from the European Banking Authority (EBA) on the regulation that falls within its scope of action, i.e. the Payment Services Directive, and constitute the first output of a co-ordinated programme of work with the next expected output being a publication by EBA on lending-based crowdfunding. In line with their respective remits, ESMA has focused on investment-based crowdfunding, while EBA has focused on lending-based crowdfunding.
22/04/2015 2015/532 Investment using virtual currency or distributed ledger technology Consultation Paper PDF
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ESMA has been monitoring and analysing virtual currency investment over the last 6 months, to understand developments in the market, potential benefits or risks for investors, market integrity or financial stability, and to support the functioning of the EU single market. ESMA’s analysis is set out in this paper. ESMA is seeking to share its analysis in order to promote wider understanding of innovative market developments, and invites market participants and other stakeholders to submit feedback and any additional information on the following topics: Virtual currency investment products, i.e. collective investment schemes or derivatives such as options and CFDs that have virtual currencies (VCs) as an underlying or invest in VC related businesses and infrastructure; Virtual currency based assets/securities and asset transfers, i.e. financial assets such as shares, funds, etc. that are exclusively traded using virtual currency distributed ledgers (also known as block chains);and The application of the distributed ledger technology to securities/investments, whether inside or outside a virtual currency environment.

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