On 4 June 2020, ESMA issued a Supervisory Briefing (the "Briefing") which will require UCITS management companies and AIFMs to produce a detailed 10-point "Pricing Process Report" for each UCITS / AIF it manages.

The report’s purpose is to identify, quantify and assess all costs charged to the relevant fund.

New Regulatory Review Mechanism

The Briefing introduces a pricing review framework that will facilitate the review by national competent authorities ("NCAs") of how fund managers meet their regulatory obligation to prevent undue costs being charged to investors.

The range of data that must be captured in the Pricing Process Report is extensive.  It will need to be to put in place and maintained for new and existing funds.

Ten Point Summary

The ten points to be included in each Pricing Process Report are summarised briefly here:
  1. Valid costs - are the costs necessary for the fund to operate in line with its investment objective?
  2. Reasonable costs – are the costs in line with market standards (note here it suggests an example of a cost analysis table of peer funds)?
  3. Appropriate costs – does the fee level correlate with the complexity of the fund's strategy?
  4. Sustainable costs – are the costs aligned with expected returns?
  5. Fair costs – do the costs result in material prejudice to any class of investor?
  6. No duplication of costs – are costs properly and separately accounted for?
  7. Capped fees – are these present and if so are they clearly disclosed?
  8. Performance fees – are these aligned with ESMA's guidelines, if relevant?
  9. Disclosure of costs – are all costs clearly disclosed in line with applicable regulatory requirements?
  10. Validation of costs – can the calculations of costs be independently verified?
Potential Outcomes

Where a regulatory review of this process identifies undue costs being charged, ESMA expects the following to be some of the options considered: (i) investor compensation, where allowed; (ii) a reduction in fees; (iii) a review of offering documents; or (iv) national regulator public communications on good / poor practices.

Next Steps and Timing

The Briefing is non-binding and NCAs are not required to indicate formally whether they will comply with it or explain the reasons for not doing so.

However, one of the Briefing’s purposes is to provide industry with an indication of these new regulatory expectations and as it is designed to ensure supervisory convergence across the EU, it is assumed that it will be followed by the Central Bank of Ireland (the "Central Bank") and other EU NCAs. 

In theory, it will require some form of affirmative action by the Central Bank (and the other NCAs) before the guidance will apply to UCITS management companies and AIFMs. Further, it would be reasonable to assume that any such action would be factored into the timing of the application of the requirements.

ESMA has indicated that it will seek to "take stock of the level of convergence reached across the EU in 2021".  Therefore, it should be expected that the new requirements will be introduced shortly.

Further Information

If you would like further information, please liaise with the below or your usual Maples Group contact.

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CONTACTS

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Peter Stapleton

Partner

+353 1 619 2024

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Stephen Carty

Partner

+353 1 619 2023

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Johan Terblanche

Managing Partner

+352 28 55 12 44

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Ian Conlon

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+353 1 619 2714

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Ronan Cremin

Partner

+353 1 619 2756

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John Gallagher

Partner

+353 1 619 2073

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Philip Keegan

Partner

+353 1 619 2122

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Deirdre McIlvenna

Partner

+353 1 619 2064

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Aaron Mulcahy

Partner

+353 1 619 2104

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Eimear O'Dwyer

Partner

+353 1 619 2065

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Niamh O'Shea

Partner

+353 1 619 2722

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Emma Conaty

Head of Global Registration Services

+353 1 619 2708

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Adam Donoghue

Partner

+44 20 7466 1711

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Pádraig Brosnan

Partner

+1 345 814 5441

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Michelle Lloyd

Partner

+852 3690 7504

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