ESMA issues opinions on product intervention measures by Germany, Hungary, Malta and Poland

• The Bundesanstalt für Finanzdienstleistungsaufsicht of Germany (BaFIN) - Opinion on the proposed product intervention measures relating to contracts for differences;
• The Magyar Nemzeti Bank of Hungary (MNB) - Opinion on the proposed product intervention measures relating to contracts for differences;
• The Malta Financial Services Authority of Malta (MFSA) - Opinion on the proposed product intervention measures relating to contracts for differences; and,
• The Komisja Nadzoru Finansowego of Poland (KNF) - Opinion on the proposed product intervention measures relating to contracts for differences.

ESMA’s opinions in relation to Germany, Malta and Poland conclude that the proposed measures are justified and proportionate. ESMA’s opinion on the proposed measures by the KNF qualifies this conclusion in relation to the lower margin requirements in comparison to ESMA’s measures for a specific subset of Polish retail clients that meet certain conditions (experienced clients) and the territorial application of the national measures.

ESMA’s opinion regarding Hungary concludes that, while the national measures adequately protect retail clients when dealing with the specific providers to which the national measures apply, these measures are not justified and proportionate because they are addressed only to individual firms and do not have a general application.  

The four ESMA opinions also conclude that it is necessary for NCAs of other Member States to take product intervention measures that are at least as stringent as ESMA’s measures. In accordance with Article 43(3) of MiFIR if a competent authority takes actions contrary to an opinion adopted by ESMA, it shall immediately publish on its website a notice fully explaining its reasons for so doing.

Background

NCAs may take product intervention measures in accordance with Article 42 of Regulation (EU) No 600/2014. At least one month before a measure is intended to take effect, an NCA must notify all other NCAs and ESMA of the details of its proposed measure and the related evidence, unless there is an exceptional case where it is necessary to take urgent action.

In accordance with Article 43 of Regulation (EU) No 600/2014, ESMA performs a facilitation and coordination role in relation to such product intervention measures taken by NCAs. After receiving notification from an NCA of its proposed measure, ESMA must adopt an opinion on whether the proposed measure is justified and proportionate. If ESMA considers that the taking of a measure by other NCAs is necessary, it must state this in its opinion.

The opinions that ESMA previously issued on proposed national product intervention measures are published on its website.