Ireland: ESMA Opinion On Common Approach To Supervision For EU Regulators Following Brexit

On 31 May 2017, the European Securities and Markets Authority ("ESMA") released its opinion on achieving a common approach to supervision ("supervisory convergence") among EU member states following Brexit (the "Opinion"). The Opinion was addressed to national competent authorities ("NCAs").

Brexit is likely to result in many UK market participants seeking to relocate to another Member State in a relatively short period of time. This could result in supervisory arbitrage risks. To mitigate these risks, it is important that there is a consistent supervisory approach across the EU.

The Opinion sets out general principles based on the objectives and provisions of certain legislation, including the AIFMD, the UCITS Directive, MiFID I and MiFID II. The Opinion should be considered a tool to achieve supervisory convergence. We set out an overview of the principles below and what NCAs should seek to achieve.

Principle 1: no automatic recognition of existing authorities

  • No automatic recognition of authorisations previously granted to third country entities or entities established in the UK will be permitted.
  • Entities are advised to approach the relevant NCA as soon as possible to seek authorisation.

Principle 2: rigorous and efficient authorisation

  • NCAs should ensure that the relevant legislative conditions are met from day one of authorisation.
  • Detailed information should be obtained and scrutiny applied to the entity's (i) governance structure; (ii) human and technical resources; (iii) outsourcing/delegation arrangements; and (iv) geographical distribution of activities. This will aid the assessment of legislative compliance by the entity.

Principle 3: objective reasons for relocation

  • The planned-EU based activity should be the main reason for the entity seeking authorisation.
  • NCAs should obtain information such as: (i) prospective investors; (ii) marketing and promotional arrangements; (iii) location of development of products or services; and (iv) if the entity has engaged with, or their application has been rejected by, another NCA.
  • NCAs should only grant authorisation if fully satisfied that the Member State of establishment was not chosen to avoid other Member States' more stringent standards.

Principle 4: avoid letter-box entities

  • NCAs should reject applications where extensive use of outsourcing is proposed or delegation is planned with the intention of benefiting from an EU passport, while the substantial activities and functions would be performed outside the EU.

Principle 5: strict conditions for outsourcing/delegation to third countries

  • Only tasks or functions can be outsourced or delegated, not responsibilities. Market participants remain responsible for tasks or functions which are outsourced or delegated.
  • NCAs should be prudent when examining the extent to which an entity will engage in outsourcing or delegation.

Principle 6: substance requirements to be met

  • Outsourcing or delegation arrangements should be clearly structured and must not hinder the efficient and effective supervision of the relevant entity by the NCA.
  • NCAs should obtain enough information to ensure they have sufficient knowledge of outsourcing or delegation arrangements.
  • Outsourcing or delegation arrangements should not impact on business continuity, confidentiality or conflicts of interest. Decision-making cannot be outsourced or delegated.
  • Special attention should be paid to certain activities/functions which, in certain circumstances, cannot be outsourced. These include: (i) internal control functions; (ii) IT control infrastructure; (iii) risk assessment; (iv) compliance functions; and (v) key management functions.

Principle 7: sound governance of EU entities

  • Key executives and senior managers of EU authorised entities are expected to be employed in the Member State of establishment and work there to a proportionate degree (if not full time) in order to effectively carry out their responsibilities.

Principle 8: effective supervision and enforcement of EU law

  • NCAs should be in a position to ensure effective supervision of entities. They should have adequate resources in place so as to monitor effectively the application of the relevant legislation.
  • Effective and efficient co-operation among NCAs is extremely important.

Principle 9: coordination to ensure effective monitoring by ESMA

  • ESMA will establish a forum for reporting and discussion among NCAs (known as the Supervisory Coordination Network) which will further aid supervisory convergence.


The Irish funds industry has always been, and will continue to be, a strong partner of UK-based market participants. Brexit is likely to result in an increase in activities related to authorisation and supervision. The Central Bank of Ireland is well prepared for the potential large volume of applications and is committed to meeting any challenges ahead. The Opinion will aid NCAs, like the Central Bank, to achieve supervisory convergence in the wake of Brexit.

ESMA expects to develop further guidance for asset managers and investment firms, which we will keep you updated on.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
14 Nov 2018, Seminar, Dublin, Ireland

We will host our commercial litigation seminar on Investigations and White Collar Crime on Wednesday 14 November in our offices on Barrow Street, Dublin 4.

Similar Articles
Relevancy Powered by MondaqAI
Maples and Calder
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Maples and Calder
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions