Article 10b(4) of the Markets in Financial Instruments Directive (MiFID) requires Member States to make publicly available the information necessary to carry out the assessment of a proposed acquirer of an investment firm.
The European Securities and Markets Authority (ESMA) is mandated under Article 10a of MiFID, as amended by the Omnibus Directive, to produce:
- regulatory technical standards (RTS) to establish an exhaustive list of information referred to in Article 10b(4) of MiFID; and
- implementing technical standards (ITS) to determine standard forms, templates and procedures for the cooperation and exchange of information between the relevant competent authorities as referred to in Article 10(4) of MiFID.
ESMA had previously submitted to the European Commission draft RTS and ITS by 1 January 2014, as required. However, following the original submission to the Commission certain changes to the RTS and ITS have become necessary due to:
- the adoption of a corrigendum to MiFID to include a cross-reference to paragraph 4 of Article 10a of MiFID, instead of paragraph 4 of Article 10b of MiFID; and
- the publication of MiFID II which replaces MiFID but confirms the empowerment to adopt the same RTS / ITS.
ESMA has now submitted updated draft RTS and ITS to the Commission. In addition to taking into consideration the above points, ESMA has included a new Article which covers the information to be provided by the proposed acquirer to enable the competent authority to assess “the reputation and experience of any person who will direct the business of the investment firm as a result of the proposed acquisition.”
The Commission has three months to decide whether to endorse ESMA’s draft technical standards.