What Changed?
On 2 August 2021, the following Level 2 measures were published in the Official Journal of the EU (the OJ):
a Commission Delegated Regulation, which amends the existing Level 2 Delegated Regulation made under AIFMD
a Commission Delegated Directive, which amends the existing Level 2 Delegated Directive made under the UCITS Directive
a Commission Delegated Directive which amends the existing Level 2 Delegated Directive on product governance made under MiFID 2.
In each case, the new measures integrate sustainability risks and sustainability factors into the applicable regimes.
Please see here for the changes the new delegated acts make to the relevant parts of the existing Level 2 measures.
In addition, on 27 March 2023, ESMA published a final report setting out revised Guidelines on product governance requirements under the MiFID II Directive, which take into account the changes made by the relevant Commission Delegated Directive above. The Guidelines will apply two months after their formal publication on the ESMA website.
Timing
The measures made under AIFMD and the UCITS Directive have applied since 1 August 2022
The measure made under MiFID 2 have applied since 22 November 2022
What's the background to this?
In July 2018, the European Commission mandated ESMA to provide it with technical advice on changes that should be made to existing Level 2 measures under (a) the UCITS Directive, (b) AIFMD and (c) MiFID 2 in order to integrate sustainability risks and sustainability factors within these regimes.
(At the same time, EIOPA was mandated to provide equivalent advice under Solvency II and the Insurance Distribution Directive - this work is outside the scope of this section.)
On 3 May 2019, following separate consultations regarding changes to the UCITS Directive and AIFMD and to MiFID 2, ESMA submitted its advice to the Commission in the form of:
On 8 June 2020, in light of ESMA's advice, the Commission consulted on its proposals for changes to the relevant Level 2 measures:
in respect of the UCITS Directive;
in respect of AIFMD; and
in respect of MiFID 2.
The consultation period closed on 6 July 2020.
On 21 April 2021, the Commission formally adopted (i.e., proposed) the following draft delegated acts:
a Delegated Regulation in respect of AIFMD;
a Delegated Directive in respect of the UCITS Directive; and
a Delegated Directive in respect of product governance measures under MiFID 2.
Please see here for what changes the proposals would make to the relevant parts of each existing Level 2 measure.
These proposals were scrutinised by the European Parliament and the Council of the EU.
On 2 August 2021, the final Level 2 texts of these were formally published in the OJ.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.
Key contacts
If you have any questions, contact a member of the Level 2 changes to AIFMD, UCITS and MiFID team for assistance:
