EFAMA believes that ESMA’s draft ‘marketing communication’ Guidelines still require important clarifications to ensure full alignment between them and MiFID II’s Commission Delegated Regulation Article 44. This alignment is essential to ensure coherent rules for fund management companies and distributors. Unfortunately, parts of the proposed Guidelines are overly prescriptive and may unintentionally make some marketing materials vaguer or even inconsistent with local MiFID requirements for distributors.
In general, we believe that more clarity is needed regarding the specific responsibilities for fund distributors and management companies. The latter cannot assume responsibility for a distributor’s marketing documents over which it has no formal control or influence.
That being said, the draft Guidelines are also not yet sufficiently calibrated for social media marketing (LinkedIn, Twitter, Facebook, etc.). The current rules require lengthy disclaimers that do not work when size and word count are severely limited.
Also, we strongly disagree with ESMA that marketing communication must always be the ‘same’ information as provided by other legal documents. There is a crucial difference between providing the “same” information or simply consistent information that does not contradict other information sources. Marketing communication should not turn into de-facto prospectuses or Key Information Documents.
In its reply, EFAMA is not only providing answers to ESMA’s questions but is also making concrete drafting suggestions to ensure consistency between the draft Guidelines and MiFID II’s Commission Delegated Regulation Article 44.