MIFID Scope

Table of Contents

MiFID

The Markets in Financial Instruments Directive (MiFID) provided enhanced investor protection legislation. The regulations apply to investment advice and investment services and provide common EU standards. Firms regulated in one country may generally provide services in another EU state on the basis of the common EU standards for the conduct of business.

The MiFID directive enhanced and strengthened the protections of the original Investment Services Directive, introduced in 1993. This latter directive was the first comprehensive regulation of investors and firms providing investment services and advice in Ireland.

Investment advice is personal recommendations to a client, either at his request or on the initiative of an investment firm, in relation to transactions in financial instruments. Financial Instruments cover a comprehensive range of financial investments, including direct investments such as shares and bonds, investments in unit trusts, mutual funds, options, futures, swaps, derivatives, and contracts for differences.

The regulations do not apply to investments in non-financial Instruments such as land, buildings, and movable property. They apply to regulate various intermediaries and service providers. Therefore, if an investment is made directly in a company without a third-party providing any of the regulated services, the regulations will not apply.

In that case of a direct investment in shares, bonds, or mutual fund, the entity concerned maybe obliged to produce a prospectus and other relevant information. However, the focus of this chapter is on investment services, which are those provided by intermediaries and other third-parties other than the investor and the entity in which the investment is made.

Services Covered

The following services are subject to regulation

reception and transmission of orders in financial services,
execution of orders for clients,
portfolio management:
investment advice;
safekeeping and administration of financial instruments for clients, including custodianship;
granting loans and credits to allow an investor to execute a transaction in financial instruments, whether the firm grants the loan or not;
advice and corporate advice to businesses;
foreign exchange services connected to investment services;
investment research financial analysis and general recommendations regarding financial transactions.

Authorisation of Firms

The regulation updates and enhanced the requirements in relation to the authorization of investment firms. Investment firms operating within Ireland are authorized by the Central Bank, financial regulator division. Investment firms in other EU countries may provide services in Ireland under the EU legislation.

The regulator maintains a register of investment firms. There are minimum requirements regarding qualification for authorization as an investment firm. The regulator must obtain full details of the structure, management and owners of the firm. It must be satisfied with the suitability of the firm from the perspective of the

propriety and incompetence of its controllers and managers, its shareholders,
its organizational structure and skills,
its ability to be supervised,
its capital structure and base,
its control and management systems.

Investment firms are subject to ongoing obligations and regulations. Their authorization may be revoked. They are subject to the full rigours of financial services regulation.

Firm Structure

The regulator must be satisfied that the directors and operators of the firm are of good repute and of sufficient experience. They must be members of an investment compensation scheme. They must comply with the minimum capital as required by the general EU prudential capital requirements.

They must have direct organizational structure so as to ensure and maintain compliance with their obligations. In particular they must be able to deal the conflicts of interest risk. They must keep records of all services and transactions to enable the regulator to monitor their compliance and performance.

Investment firms must establish, implement and maintain decision making procedures and an organizational structure which clearly and in documented manner specifies reporting lines and allocates functions and responsibilities. Relevant persons must be aware of the procedures which must be followed.

Controls & Procedures

They must establish adequate internal control mechanisms to secure compliance with decisions and procedures. They must employ personnel with the skills and knowledge necessary to discharge responsibility. They must establish, implement and maintain internal reporting and communication of information. They must maintain adequate and orderly records.

Investment firms must have procedures that are sufficient to safeguard the security integrity and confidentiality of information, adequate business continuity policies in the case of interruption, adequate accounting policies and procedures, and policies and procedures designed to protect against risks of failures.

Investment firms have positive obligations in connection with ongoing, regular monitoring of the adequacy and effectiveness of their systems, control mechanisms, and arrangements. They must maintain an effective and proper compliance function that monitors the adequacy and effect of measures put in place.

The compliance function must have the necessary authority, resources, and expertise. The compliance officer must be responsible for compliance and enjoy certain rights and privileges in the organization.

Risk Management

Investment firms must establish and implement adequate risk management policies and procedures. These must identify risks in relation to the firm’s activities processes and system.

They must adopt effective arrangements to manage the risks in the light of the permitted risk tolerance. They must monitor their own risk management policies and procedures.

Where appropriate, in view of the nature, size and complexity of their business, they must establish and maintain a risk management function that operates independently or facilitates effective implementation and reporting. If an independent risk management function is not appropriate, the firm must still demonstrate policies and procedures to ensure effective compliance with the above obligations.

Audit, Review & Complaints

An investment firm, where appropriate and proportionate in view of the nature, scale and complexity of its business and the range of investment services and activities undertaken in the course of the business must maintain and establish an internal audit function which is separate and independent from other functions and ensures the following responsibilities:

establishing, implementing and maintaining an audit plan to examine the effectiveness and adequacy of investment firm systems;
verification of compliance.

The Investment firm must ensure that senior management and the person performing supervisory functions periodically assess and review the effectiveness of the policies, arrangements, and procedures put in place to comply with the firm’s obligation. Investment firms must also ensure that their senior management receives written reports on certain specified matters on a frequent basis, at least annually.

Investment firms must maintain effective and transparent procedures for complaints from retail and potential retail clients. They must keep a record of each complaint and the measures taken to resolve it.

Connected Person Transaction

There are restrictions and procedures for transactions by persons internal to the investment firm and persons connected with them. Arrangements must be implemented and maintained to prevent any such persons

entering personal transaction which involves any misuse or improper disclosure of inside information,
likely to conflict with obligations to third parties
disclosing information to others or
having others undertake transactions on their behalf.

There must be arrangements and procedures to ensure that insiders or persons connected to them, are aware of the restrictions on personal transactions and the measures to prevent them. There must be mechanism to ensure that the firm is promptly informed of any personal transaction and that records are kept including any authorization or prohibition in connection with the transaction. There are some minimal exemptions.

Investment firms must maintain records under the regulation for five years. They must also maintain the terms of their service agreements with clients for at least the duration of the relationship with the client. The Central Bank may require that they maintain records for a longer period. The regulator must be in a position to access all records.

Investment Firm Conflicts

Investment firms must comply with the terms of their authorisations/licences.

An investment firm must take all reasonable steps to identify conflicts of interest in the course of providing investment and other service. This covers conflicts within the firms, conflicts between clients and conflicts between the firm, between or among the firm or to organization and third-parties.

Where organizational arrangements to manage conflicts of interest are insufficient to ensure with reasonable confidence that the risk of damage to client interests will be prevented, the investment firm must clearly disclose the general nature and sources of the conflicts of interest to clients before undertaking business on their behalf.

In identifying types of conflict of interest, which may damage the interest of clients, the firm must take into account whether the firm or connected persons may as a result of the investment or services:

make a financial gain or avoid a financial loss;
where the firm has an interest in the outcome of the service, which is distinct to the client’s interest;
where the firm has a financial incentive to favour the interests of another client or group of clients over the interests of the client for whom the service is being provided;
whether the firm carries out the same businesses as the client
whether a firm or business receives from a third party an inducement in relation to the service provided either by way of goods or money other than the standard commission or fee for that service.

The conflict of interest policy must be appropriate to the size and organization of the firm and the nature, scale and complexity of its business interest. The conflict of interest policy must identify particular services that may give rise to a conflict of interest or damage the interests of one or more clients, and it must specify the procedure to be followed to manage such conflicts.

Investment firms must ensure that the procedures and measures to be taken are designed to ensure that persons internally engaged in different businesses involving a conflict of interest carry on those activities with an appropriate degree of independence having regard to the size and activity of the firm and the risks of damage to the interests of clients.

The procedures should include where necessary and appropriate,

measures to prevent or control the exchange of information between persons within the firm,
supervision of persons,
removal of the direct link between the remuneration of persons engaged in one activity and remuneration and revenues generated by different persons principally engaged in another activity, where a conflict of interest may arise;
measures to prevent a person from exercising inappropriate influence in the way in which another person internally carries out investment or ancillary services;
measures to prevent and control simultaneous or sequential involvement of internal persons in separate investments or in separate services, where the involvement may impair the proper management of conflicts of interest.

Conflicts must be disclosed to clients in a durable medium. They must include sufficient detail taking account of the nature of the client, to enable the client to make an informed decision in relation to the service in the context of the conflict which arises.

Investment Firms Records

Investment firms must maintain up-to-date direct records of the kinds of service or activity carried out in which a conflict involving risk carrying a material risk of damage to the interest of one or more clients arises or may arise.

The regulations do not apply to certain categories of investment firms:

insurance companies and businesses;
provision of services exclusively within a group of companies;
persons who deal on their own account;
investment services exclusively in the administration of employee participation schemes;
persons providing investment advice in the course of another professional activity not covered by the regulations if the advice is not separately remunerated;
personal representatives in their capacity as such;
private trustees and their capacity as such;
liquidators and receivers in their capacity as such;
collective investment schemes and
pension funds.

The regulations do not apply to persons in the State who are regulated by the Central Bank but do not hold client funds or securities, are not allowed to provide any services except receiving and transmitting orders, providing investment advice in relation to those securities and in the course of providing those services. are allowed to transmit orders only to

investment firms
credit institutions; Their branches
collective investment firms.

Investment firms must hold records of relevant data relating to transactions executed by the firm for themselves or for clients for at least five years. The records must be made available to the regulator. It must include information on the identity of the client and include money laundering/terrorist financing identity documents.

Central Bank Conditions & Directions

The Central Bank, as regulator, may impose conditions and requirements on investment firms. It may give directions to the firms imposed on the directors and managers. Directions may be given where the regulator believes that it is in the proper and orderly regulation and supervision of the firm to suspend

the provision of services
making payments
acquisition and disposal of liabilities
entering or not entering transactions,
solicitor business of a particular kind
carrying on business,
trading in any financial instrument.

The direction may be given where the Central Bank is of the opinion that it is in the interest of the proper and orderly conduct and supervision of the firm,

protection of investments,
if the firm is unlikely to meet its obligations in the Central Bank’s opinion,
is not maintaining the required capital,
has failed to comply with conditions,
is conducting business in a manner so as to jeopardize or prejudice money held by it;
has failed to comply with the Bank’s reasonable request for information.

Central Bank Court Application

The Central Bank, as the regulator, may apply to the High Court for orders in relation to investment firms. Where a direction order is in force with respect to an investment firm, no liquidation receivership, etc., may be initiated, nor may its assets be enforced against without the prior consent of the court. Creditors may apply to court to set aside or vary the direction.

The Central Bank, as regulator, may apply to court to wind up an investment firm. Where any third party seeks to wind up an investment firm, a copy of the petition must be served on the Central Bank as regulator. The Central Bank, as regulator, may appoint a committee of inspection in relation to an investment firm. See the section on company law enforcement.

There are restrictions on advertising, supplying or offering to supply investment services, making solicitations, or representing a person as a provider of service if he is not, in fact, authorized.

Stock Exchanges

The regulations provide for the operation of regulated financial markets such as stock exchanges. There are detailed requirements in respect of the operators of such exchanges.

The rules are designed to ensure the integrity and maintenance of the market. See the separate chapter on domestic and international stock exchanges.