GUIDANCE FOR FUNDS’ MARKETING COMMUNICATIONS – New obligations for AIFMs and UCITS MancoS
The European Securities and Markets Authority (ESMA) drafted a consultation paper on guidelines on marketing communications. ESMA invited feedback from interested stakeholders on the proposed guidelines by 8 February 2021 and will consider this feedback with a view to issue final guidelines by 2 August 2021. These guidelines, once finalized, will again add to the workload of AIFMs and management companies and result in additional communication, authorization and documentation requirements.
The purpose of the draft guidelines is to specify the requirements for marketing communications sent to investors in order to promote UCITS and AIFs, including EuSEFs, EuVECAs and ELTIFs. The requirements, as currently foreseen by ESMA, are that any marketing material shall:
- be identifiable as marketing material;
- describe the risks and rewards of purchasing units or shares of an AIF or units of a UCITS in an equally prominent manner; and
- contain information which is fair, clear and not misleading.
Definition of “marketing communications“
- “Marketing” is defined by Article 4(1)(x) of the AIFMD as “a direct or indirect offering or placement at the initiative of the AIFM or on behalf of the AIFM of units or shares of an AIF it manages to or with investors domiciled or with a registered office in the Union”.
- The notion of “marketing communications” should encompass all communications, regardless of the medium used, which contain a direct or indirect offering or placement of units or shares of a fund to or with investors domiciled or with a registered office in the Union.
- It is proposed to specify, in the Scope section of the Guidelines, that they apply to all marketing communications for UCITS and AIFs, including EuVECAs, EuSEFs, ELTIFs and Money Market Funds, and to draw up a non-exhaustive list of the types of communications viewed as marketing communications, and therefore subject to these Guidelines.
- The purpose of this list is to ensure that all communications that have a marketing purpose are subject to the Guidelines. In particular, to take into account the online aspects of marketing, the list introduces reference to messages broadcast on social media platforms, in order to ensure that these platforms are not used to target potential investors with messages that would otherwise not be subject to the same standards as traditional marketing communications.
Scope of the guidelines on marketing communication:
- Requirement for a Disclaimer
To avoid all possible confusion between the legal documentation of a fund and marketing communications, ESMA is of the view that these communications should include a short disclaimer, which would make it clear that they have a marketing aim, and which would draw the attention of investors or potential investors to the fact that an investment decision should not be based only on this marketing communication. This disclaimer should
- mention the existence of the legal and regulatory documents of the promoted fund, in particular the prospectus or the information documents referred to in Article 23(1) of the AIFMD, Article 13(1) of the EuVECA Regulation or Article 14(1) of the EuSEF Regulation, and of the KID or KIID, as to ensure that investors or potential investors are made aware of the existence of these documents; and
- be stated in a clear manner, which should be assessed in consideration of the type of marketing communication (e.g. for video presentations, the disclaimer should appear in a prominent manner in the video, a short warning at the end of the video would not be sufficient).
- Obligations for AIFM and Management Companies to describe risks and rewards
According to Article 4(1) of the draft guidelines, UCITS management companies, AIFMs, EuVECA managers and EuSEF managers shall ensure that all marketing communications describe the risks and rewards of purchasing units or shares of an AIF or units or shares of a UCITS in an equally prominent manner. This requirement:
- relates to the format of the description of risks and rewards and aims at allowing investors or potential investors to identify in a clear and easily understandable manner both the risks and the rewards of the promoted fund;
- implies that the marketing communication should refer to both the risks and the rewards in the same manner, by using the same font and size, and by placing each description along with the other in the communication.
Pursuant to Article 4(1) of the Regulation, fund managers shall ensure that “all information included in marketing communications is fair, clear and not misleading”:
- ESMA proposes that the Guidelines include different sets of requirements to be taken into account when drawing up marketing communications: In particular, the Guidelines should set out some general requirements that all marketing communications, regardless of their format, outlook or content, should meet.
- Information on costs & past and expected future performance
- Marketing communications should give a realistic picture of the costs borne directly or indirectly by investors and should encompass both one-off and ongoing costs.
- The information on past performance should give an accurate and fair representation of the situation of the promoted fund.
- Information on sustainability-related aspects
- Marketing communications should be based on the content of the prospectus of a UCITS or of the information document of an AIF, a EuSEF or a EuVECA. This would complement Article 13(1) of Regulation (EU) 2019/2088, which requires that marketing communications should not contradict the information disclosed under that Regulation.
The sustainability-related information of a marketing communication should be commensurate with the extent to which the investment strategy of the fund promotes environmental or social characteristics, or sustainable investme