Cross-Border Fund Distribution: ESMA’s Marketing Requirements

Earlier this month (3 July), the European Securities and Markets Authority (“ESMA”) published its report on marketing requirements and marketing communications under the Regulation on cross-border distribution of funds (ESMA34-45-1814) (the “Report”). 

ESMA is required to publish this report in line with Article 8(2) of the Regulation (EU) 2019/1156 (the “Cross-Border Regulation”) every second year. The Reports presents an overview of marketing requirements in all EU and EEA Member States and contains an analysis of the effects of national laws, regulations and administrative provisions governing marketing communications based also on the information received from national competent authorities (“NCAs”). 

In order to prepare this report, NCAs were required to submit to ESMA questionnaires on the national laws, regulations and administrative provisions governing marketing requirements in their respective jurisdiction. 

Significantly, the NCAs were asked to provide a summary, covering certain categories of marketing requirements (such as the format and content of marketing material, passporting rules and de-notification rules) for UCITS and Alternative Investment Funds (“AIFs”).  Annex IV of the Report includes a very useful and comprehensive overview for fund managers, distributors and other market participants marketing on a cross-border basis in the EU and EEA. It includes the responses submitted by NCAs in respect of the questionnaire, listing out the specific national requirements for the passporting, registration, reporting obligations, marketing and distribution of EEA and non-EEA UCITS and AIFs. 

The Report therefore contains clarifications that describe the current regulatory practice of the EU and EEA NCAs in detail and provides helpful guidance for market participants.