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|02/06/2016||2016/903||ESMA reminds firms of responsibilities when selling bail-in securities||MiFID - Investor Protection||Press Release||PDF
|30/05/2016||2016/742||ESMA issues opinion on MiFID II standards on ancillary activities||Press Releases, MiFID - Secondary Markets||Press Release||PDF
|02/05/2016||2016/566||Press release MiFID II RTS||Press Releases, MiFID - Secondary Markets||Press Release||PDF
|07/04/2016||2016/582||ESMA finds room for improvement in national supervision of investment advice to retail clients||MiFID - Investor Protection, Press Releases, Supervisory convergence||Press Release||PDF
|07/04/2016||JC/2016/21 PR||Joint Press Release draft RTS on PRIIPs||Fund Management, Joint Committee, Press Releases||Press Release||PDF
|04/04/2016||2016/566||ESMA not to exempt ETD under MiFID II||Press Releases, MiFID - Secondary Markets||Press Release||PDF
|31/03/2016||2016/472||ESMA publishes UCITS remuneration guidelines||Fund Management, Press Releases||Press Release||PDF
The European Securities and Markets Authority (ESMA) has published its final Guidelines on sound remuneration policies under the UCITS Directive and AIFMD. ESMA has also written to the European Commission, European Council and European Parliament on the proportionality principle and remuneration rules in the financial sector.
UCITS Remuneration Guidelines
The UCITS Remuneration Guidelines provide clarity on the requirements under the UCITS Directive for management companies when establishing and applying a remuneration policy for key staff. The Guidelines will ensure a convergent application of these provisions and provide guidance on the governance of remuneration, requirements on risk alignment and disclosure. The Guidelines will apply to UCITS management companies and national competent authorities from 1 January 2017.
ESMA, while finalising its UCITS Remuneration Guidelines, had to balance the alignment with the AIFMD Remuneration Guidelines and the obligation to closely cooperate with the European Banking Authority (EBA) in order to ensure consistency with requirements developed for other financial services sectors, in particular credit institutions and investment firms.
The UCITS Directive prescribes that proportionality shall apply to the full set of remuneration principles set out under this Directive. However, the Guidelines do not include guidance on the possibility of dis-applying certain specific requirements on the pay-out process. This follows recent work and legal analysis, including the EBA’s Guidelines under CRD IV, which have called into question the existing understanding that the proportionality provisions as set out under the UCITS Directive and AIFMD may lead to a result:
ESMA considers that these scenarios should remain possible in certain situations and, in its letter to the European institutions, suggests that further legal clarity on this possibility could be beneficial to all the interested parties. Legislative changes in the relevant asset management legislation could be one way to further clarify the applicable regulatory framework.
ESMA believes that it would be inappropriate for the following fund managers to be subject in all circumstances to the requirements on the pay-out process:
ESMA also considers that it would be disproportionate to apply the requirements to relatively small amounts of variable remuneration and to apply certain requirements to certain staff when this would not result in an effective alignment of interests between the staff and the investors in the funds.
AIFMD Remuneration Guidelines
The amended AIFMD guidelines will come into force on 1 January 2017. The amendment to the AIFMD guidelines relates to the section of these guidelines dealing with the application of the remuneration rules in a group context and is intended to acknowledge the potential outreach of the CRD rules in a banking group.
The current AIFMD Guidelines will not be amended to bring them into line with the UCITS Guidelines pending clarification on the application of the proportionality principle.
The Guidelines in Annexes III and IV will be translated into the official languages of the European Union and the final texts published on the ESMA website. The deadline for compliance notifications will be two months after the publication of the translations.
|31/03/2016||2016/468||ESMA fines DTCC Derivatives Repository Limited €64,000 for data access failures||Press Releases, Trade Repositories||Press Release||PDF
ESMA fines DTCC Derivatives Repository Limited €64,000 for data access failures
The European Securities and Markets Authority (ESMA) has fined the trade repository DTCC Derivatives Repository Limited (DDRL) €64,000, and issued a public notice, for negligently failing to put in place systems capable of providing regulators with direct and immediate access to derivatives trading data. This is a key requirement under the European Markets and Infrastructure Regulation (EMIR) in order to improve transparency and facilitate the monitoring of systemic risks in derivatives markets.
This is the first time ESMA has taken enforcement action against a trade repository registered in the European Union (EU). DDRL is the largest EU registered trade repository.
ESMA found that DDRL failed to provide direct and immediate access to derivatives data from 21 March 2014 to 15 December 2014, a period of about nine months in which access delays increased from two days to 62 days after reporting and affected 2.6 billion reports. This was due to its negligence in:
DDRL’s failures caused delays to regulators accessing data, revealed systemic weaknesses in its organisation particularly its procedures, management systems or internal controls and negatively impacted the quality of the data it maintained.
|05/02/2016||2016/247||ESMA to focus on governance, strategy, data and fees in 2016 supervision||Credit Rating Agencies, Press Releases, Trade Repositories||Press Release||PDF
The European Securities and Markets Authority (ESMA) has today published its 2016 supervisory priorities for credit rating agencies (CRAs) and trade repositories (TRs), as well as its annual report summarising the key supervisory work and actions undertaken during 2015.
2016 Supervisory Priorities
ESMA has seen a number of changes in the CRA and TR industries during 2015, with new applicants for registration in both sectors, and current authorised entities seeking to develop their businesses. This has included CRAs providing credit ratings on new asset classes or in new geographic areas, and TRs offering trade reporting services for other instrument types.
ESMA identifies its supervisory priorities on the basis of risk assessment exercises conducted throughout the year. In 2015 these identified high levels of governance and strategy risk, and operational risk in the CRA industry and high levels of risk associated with TRs’ data and systems. Therefore, in 2016 ESMA will focus its supervisory activities on:
Steven Maijoor, ESMA Chair, said:
“The credit rating and trade repository industries continue to evolve and develop. We are receiving new applications for registration and existing entities are seeking to develop their businesses by expanding into new areas. ESMA supports these developments where they contribute to the maintenance of stable and orderly financial markets.
“For this reason, in 2016 ESMA will focus its work on the quality of the services being provided by supervised entities. This means we will concentrate on issues surrounding CRA governance, strategy and ratings quality, along with data quality and access to TRs’ data with a broad focus on the fee structures and information security in both industries.”
2015 Annual Supervisory Review – CRAs and TRs
In 2015, following its risk-based approach, ESMA focused its supervisory efforts on CRAs’ governance, risk management and internal decision making and on CRAs’ business development processes. Some notable achievements were:
The key risks TR supervision focused on in 2015 related to the quality of TRs’ data, access to data held by TRs and the operation and performance of TRs’ systems. In 2015, ESMA continued working with TRs to implement the data quality action plan established in September 2014 including:
ESMA has also been monitoring National Competent Authorities’ (NCAs) access to TR data. It has entered into a number of Memoranda of Understanding (MoUs) to help third country regulatory authorities access TR data and is developing an IT system to allow NCAs to submit data queries through a centralised web portal.
|02/02/2016||2016/138||ESMA updates on supervisory work on closet index tracking||Fund Management, Press Releases||Press Release||PDF
The European Securities and Markets Authority (ESMA) has published a Statement providing details of its work on closet index tracking funds.
Closet indexing, also known as index hugging, refers to the practice of fund managers claiming to manage portfolios actively when in reality the fund stays close to a benchmark. ESMA is concerned the practice may harm investors as they are not receiving the service or risk/return profile they expect based on the fund’s disclosure documents while potentially paying higher fees compared to those typically charged for passive management.
ESMA conducted research on a sample of 2,600 funds for the period 2012-2014 to determine whether it could find any indication of closet indexing at an EU-wide level. Quantitative metrics, such as the percentage of a UCITS’ portfolio that does not coincide with the underlying equity benchmark, indicated between 5 and 15% of UCITS equity funds could potentially be closet indexers. ESMA then reviewed the investor disclosure documents of the funds concerned, to see how they described their management strategy, and found they tended to confirm the quantitative analysis results.
|22/12/2015||2015/1872||Press Release Cross Selling Guidelines||MiFID - Investor Protection||Press Release||PDF
The European Securities and Markets Authority (ESMA) has published its Guidelines on Cross-Selling Practices under MiFID II (guidelines) to ensure investors are treated fairly when an investment firm offers two or more financial products or services as part of a package.
The guidelines include principles on:
The European Supervisory Authorities (ESAs) – EBA, EIOPA and ESMA - initially intended to issue joint guidelines covering all cross-selling practices taking place in the banking, insurance and securities sectors given that cross-selling is often cross-sectoral, and had consulted the stakeholders previously on this basis.
However, in light of legal concerns, the ESAs decided not to issue joint guidelines on cross-selling practices but agreed that ESMA should issue ESMA-only guidelines under MiFID II in order to meet its 3 January 2016 deadline.
While ESMA’s guidelines take into account the results of the ESAs’ joint consultation, the final report focuses on the feedback regarding cross-selling practices under MIFID II. Further, the guidelines are addressed to national regulators supervising the firms which provide MiFID services, when they engage in cross-selling practices.
The ESAs intend to inform the European Commission about the issues encountered and raise the possibility of legislative change to provide a foundation for future joint guidelines.
The guidelines will apply from 3 January 2017.
|11/11/2015||JC/2015/078||ESAs consult on PRIIPs key information for retail investors||Fund Management, Joint Committee, Press Releases||Press Release||PDF
|30/07/2015||2015/1238||ESMA advises on extension of AIFMD passport to non-EU jurisdictions||Fund Management, Press Releases||Press Release||PDF
|The European Securities and Markets Authority (ESMA) has published its Advice in relation to the application of the AIFMD (Alternative Investment Fund Managers Directive) passport to non-EU Alternative Investment Fund Managers (AIFMs) and Alternative Investment Funds (AIFs) and its Opinion on the functioning of the passport for EU AIFMs and the national private placement regimes (NPPRs). The Advice and Opinion, required under AIFMD, will now be considered by the European Commission, Parliament and Council. ESMA Advice – Extension of AIFMD Passport to non-EU AIFMs and AIFs The Advice relates to the possible extension of the passport, currently only available to EU entities, to non-EU AIFMs and AIFs which are currently subject to EU NPPRs. ESMA conducted a country-by-country assessment, as this allowed it flexibility to take into account the different circumstances of each non-EU jurisdiction regarding the regulatory issues to be considered i.e. investor protection, competition, potential market disruption and the monitoring of systemic risk. ESMA assessed six jurisdictions – Guernsey, Hong Kong, Jersey, Singapore, Switzerland and the United States of America (USA) – who were selected based on a number of factors including the amount of activity already being carried out by entities from these countries under the NPPRs, EU national authorities’ knowledge and experience of dealing with their counterparts and the efforts by stakeholders from these countries to engage with ESMA’s process. The Advice concludes that no obstacles exist to the extension of the passport to Guernsey and Jersey, while Switzerland will remove any remaining obstacles with the enactment of pending legislation. No definitive view has been reached on the other three jurisdictions due to concerns related to competition, regulatory issues and a lack of sufficient evidence to properly assess the relevant criteria. Next Steps The Advice and Opinion have been sent to the Commission, Parliament and Council for their consideration on whether to activate the relevant provision in the AIFMD extending the passport through a Delegated Act. However, the institutions may wish to consider waiting until ESMA has delivered positive advice on a sufficient number of non-EU countries, before introducing the passport in order to avoid any adverse market impact that a decision to extend the passport to only a few non-EU countries might have. ESMA aims to finalise the assessments of Hong Kong, Singapore and the USA as soon as practicable and to assess further groups of non-EU countries until it has provided advice on all the non-EU countries that it considers should be included in the extension of the passport. ESMA Opinion – Functioning of the EU AIFMD passport and NPPRs The opinion on the functioning of the EU passport and the NPPRs contains ESMA’s preliminary assessment of the operation of these two mechanisms. Its preliminary view is that, given the short time period that has elapsed since the implementation of the AIFMD in Member States, a definitive assessment of their functioning is difficult and would recommend preparing a further opinion after a longer period.|
|30/07/2015||2015/1236||ESMA's advice to the European Parliament, the Council and the Commission on the application of the AIFMD passport to non-EU AIFMs and AIFs||Fund Management||Technical Advice||PDF
|Executive summary Reasons for publication In accordance with Articles 36 and 42 of the Directive 2011/61/EU on Alternative Investment Fund Managers (AIFMD), non-EU alternative investment fund managers (AIFMs) and non-EU alternative investment funds (AIFs) managed by EU AIFMs are subject to the national private placement regime (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 advice on the application of the passport to non-EU AIFMs and AIFs in accordance with the rules set out in Article 35 and 37 to 41 of the AIFMD. This document sets out ESMA’s advice on the application of the passport to six non-EU countries: Guernsey, Hong Kong, Jersey, Switzerland, Singapore and the United States. Contents Section 1 of the advice sets out the background to ESMA’s work, while the detailed assessment of each of the aforementioned non-EU countries is contained in section 2. Annexes 1 to 7 contain a summary of the feedback to the call for evidence that ESMA launched in November 2014. Annex 8 gives a detailed breakdown by non-EU country of the number of non-EU AIFs and non-EU AIFMs active in Member States in accordance with Articles 36 and 42 of the AIFMD. Next Steps ESMA will continue to work on its assessment of other non-EU countries not covered in this advice with a view to delivering further submissions to the European Parliament, the Council and the Commission in the coming months. For those non-EU jurisdictions with which there are currently no supervisory cooperation arrangements in place for the purposes of the AIFMD, ESMA will continue its efforts to agree a MoU with the authorities concerned.|
|23/07/2015||2015/1193||ESMA consults on UCITS remuneration guidelines||Fund Management, Press Releases||Press Release||PDF
|The European Securities and Markets Authority (ESMA) has launched a consultation on proposed Guidelines on sound remuneration policies under the UCITS V Directive and AIFMD. The Directive includes rules that UCITS must comply with when establishing and applying a remuneration policy for certain staff categories and the proposed UCITS Remuneration Guidelines further clarify the Directive’s provisions. The proposed Guidelines aim to ensure a convergent application of the remuneration provisions and will provide guidance on issues such as proportionality, governance of remuneration, requirements on risk alignment and disclosure. The final Guidelines will apply to UCITS management companies and national competent authorities.|
|22/05/2015||2015/884||Press Release- ESMA calls for modification of UCITS Directive||Fund Management, Press Releases||Press Release||PDF
|01/04/2015||2015/674||Press release- ESMA launches centralised data projects for MiFIR and EMIR||MiFID - Secondary Markets, Press Releases||Press Release||PDF
|25/02/2015||2015/495||ESMA publishes review on best execution supervisory practices under MiFID||MiFID - Investor Protection, Press Releases, Supervisory convergence||Press Release||PDF
|The European Securities and Markets Authority (ESMA) has conducted a peer review on how national regulators (national competent authorities or NCAs) supervise and enforce the MiFID provisions relating to investment firms’ obligation to provide best execution, or obtain the best possible result, for their clients when executing their orders. ESMA found that the level of implementation of best execution provisions, as well as the level of convergence of supervisory practices by NCAs, is relatively low. In order to address this situation a number of improvements were identified, including: . prioritisation of best execution as a key conduct of business supervisory issue; . the allocation of sufficient resources to best execution supervision; and . a more proactive supervisory approach to monitoring compliance with best execution requirements, both desk-based and onsite inspections. The review was conducted on the basis of information provided by 29 NCAs and complemented by on-site visits to the NCAs of France, Liechtenstein, Luxembourg, Malta, Poland and Spain.|
|16/02/2015||2015/227||Final Report- ESMA’s technical advice to the European Commission on the delegated acts of the Regulations on European Social Entrepreneurship Funds and European Venture Capital Funds||Fund Management||Technical Advice||PDF
|19/12/2014||2014/1574||ESMA provides implementing rules for MiFID II||MiFID - Investor Protection, Press Releases, MiFID - Secondary Markets||Press Release||PDF
|The European Securities and Markets Authority (ESMA) has published today its final technical advice (TA) and launches a consultation on its draft regulatory technical and implementing standards (RTS/ ITS) regarding the implementation of the Markets in Financial Instruments Directive (MiFID II) and Regulation (MiFIR). Both ESMA’s TA and draft RTS translate the MiFID II/MiFIR requirements into practically applicable rules for market participants and national supervisors. The new regulatory framework aims at ensuring that secondary markets are fair, transparent and safe and that investors’ interests are safeguarded when being sold investment products. Steven Maijoor, ESMA Chair, said:“Today’s implementing rules on both secondary markets and investor protection issues reflect ESMA’s desire to achieve the best outcome for market users and investors, taking into account the extensive submissions received from our stakeholders. The advice now goes to the European Commission to use in preparation of its delegated legislation, while our technical standards are open for a second round of consultation. “Once fully implemented, MiFID II will have a significant impact on the EU’s securities markets, its users and infrastructure providers. It will bring greater transparency and improve the overall functioning of markets thus strengthening investors’ trust in the financial sector.”MiFID II to include most financial instruments, trading venues and techniquesMiFID II/MiFIR introduces changes to the functioning of secondary markets, including transparency requirements for a broad range of asset classes; the obligation to trade derivatives on trading venues; requirements for algorithmic and high-frequency-trading and new supervisory tools for commodity derivatives. The key proposals stemming from ESMA’s TA/draft RTS cover the following issues: • increased trade transparency, for non-equity instruments, in particular bonds, derivatives, structured finance products and emission allowances;• a trading obligation for shares and a double volume cap mechanism for shares and equity-like instruments, introducing a major change to the framework for trading these instruments in the Union;• an obligation to trade derivatives on MiFID venues (regulated markets, multilateral (MTFs) or organised trading facilities (OTFs)) only, in line with G20 requirements;• newly introduced position limits and reporting requirements for commodity derivatives;• rules governing high frequency trading, imposing a strict set of organisational requirements on investment firms and trading venues;• provisions regulating access to central counterparties (CCPs), trading venues and benchmarks, designed to increase competition in the Union; and• requirements for a consolidated tape of trading data, including rules for tape providers, reporting, publication and sales of data.MiFID II to improve investor protection ESMA’s TA proposes that the Commission adopts a number of measures that will further the protection of investors across the EU. The main proposals relating to the improved protection of investors, especially retail, include:• clarifications about the circumstances in which portfolio managers can receive research from third parties;• clarifications under which circumstances inducements meet the quality enhancement requirement for the provision of advice;• requirements for investment firms manufacturing and/or distributing financial instruments and structured deposits to have product governance arrangements in place in order to assess the robustness of their manufacture and/or distribution;• requirements for firms to provide clients with details of all costs and charges related to their investment, including cost aggregations, the timing of disclosure (ex-ante and ex-post); information to non-retail clients; the scope of firms subject to this obligation; information on the cumulative effect of costs on the return; • organisational requirements for firms providing investments advice on an independent basis; and• specification of powers for ESMA and national regulators with regards to prohibiting or restricting the marketing and distribution of financial instruments. Next stepsThe TA has been finalised following extensive consultations with stakeholders and will now be sent to the European Commission. ESMA’s draft RTS/ITS, already previously consulted upon, are open for public comment until 2 March 2015. In addition, an open hearing will be held in Paris on 19 February 2015. ESMA will use the input received from the consultations to finalise its draft RTS which will be sent for endorsement to the European Commission by mid-2015, its ITS by January 2016. MiFID II/ MiFIR and its implementing measures will be applicable from 3 January 2017.|