ESMA publishes updated draft guidance for portfolio managers and investment advisers on how to deal with the “suitability” test under the MiFID.
On 29 February 2012, the European Securities and Markets Authority (“ESMA”) published the responses to its consultation paper on certain aspects of the "suitability" requirements under the Markets in Financial Instruments Directive (“MiFID”). The draft guidelines set out in that paper are relevant for MiFID-licensed investment firms when performing individual portfolio management or investment advice services under the MiFID. The paper focuses mainly on the need for firms to have in place appropriate policies and procedures in order to know their clients when recommending “suitable” investment choices in accordance with the MiFID. The draft guidelines contain guidance concerning, inter alia, the following topics:
(a) the firms’ information obligations vis-à-vis their clients regarding the background of the suitability assessment process and the firms’ own responsibilities in that process;
(b) the adequate policies and procedures investment firms are required to have in place to enable them to understand the essential facts about their clients and the characteristics of the financial instruments available for those clients;
(c) the variable nature and extent of the information to be collected depending on the services provided, the instruments involved and the level of ‘sophistication’ of the relevant client;
(d) the level of knowledge and expertise required from staff members involved in material aspects of the suitability;
(e) the reasonable steps required from investment firms to ensure the information collected is reliable and the procedures required to maintain adequate and updated information about the client; and
(f) the firms’ record-keeping obligations concerning all stages of the suitability process.
ESMA expects to publish a final report, and final guidelines, in the second quarter of 2012.