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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
United Kingdom | Publication | julho 2024
In May 2024, the European Securities and Markets Authority (the ESMA) published its eagerly anticipated final guidelines on funds’ names using environmental, social and governance (ESG) or sustainability-related terms.
Investor demand for investment funds that incorporate ESG factors have grown and will continue to grow in the future. In this context, the name of a fund is important as it is usually the first fund’s attribute that investors see with the potential to have a significant impact on their investment decisions. Financial services regulators are aware of this and have concerns regarding the risks of greenwashing from this point of view.
On 31 May 2022, ESMA issued a supervisory briefing on sustainability risks and disclosures in the area of investment management (the Briefing) containing inter alia principles-based guidance on fund names with ESG and sustainability-related terms. The Briefing was issued under Article 29(2) of the Regulation establishing the ESMA1 meaning that it was intended to promote common supervisory approaches and practices but it was not binding with Member State competent authorities (NCAs) not subjected to a comply or explain mechanism.
Almost six months later ESMA followed up the Briefing with a consultation on draft guidelines on funds’ names using ESG or sustainability-related terms (the Consultation). The draft guidelines contained more specific guidance on the issue compared to the supervisory briefing.
The Consultation closed on 23 February 2023 with the ESMA expecting to issue the final guidelines relatively quickly thereafter by Q2 / Q3 2023. However, given the significant amount of feedback from the market the publication of the final guidelines was delayed and it was not until 14 May 2024 that they were published. The final guidelines (Guidelines) are issued under Article 16 of the Regulation establishing the ESMA meaning that unlike the Briefing Member State competent authorities are subject to a comply or explain mechanism.
The Guidelines introduce quantitative thresholds (e.g., proportion of ESG related investments and/or sustainable investments) that will apply as a condition for funds using ESG and/or sustainability related terms in their names, as well as minimum safeguards (including the exclusion criteria defined in Commission Delegated Regulation (EU) 2020/1818 of July 17, 2020) depending on the type of terms used by a fund in its name.
The Guidelines apply to (i) management companies of undertakings for collective investment in transferable securities (UCITS) within the meaning of the UCITS Directive2, including UCITS which have not designated such management company (i.e. internally managed UCITS), (ii) alternative investment fund managers (AIFMs) within the meaning of the Alternative Investment Fund Managers Directive (the AIFMD), including internally managed alternative investment funds3 (AIFs) within the meaning of the AIFMD, as well as (iii) the managers of European Venture Capital Funds, European Social Entrepreneurship Funds, European Long-Term Investment Funds and Money Market Funds and (iv) NCAs.
There remain some uncertainties around the exact scope of application of the final guidelines which will require further clarification from ESMA.
These include:
Also in terms of scope, it is worth noting that the Guidelines do not capture all the financial products captured by the Sustainable Finance Disclosure Regulation4 (SFDR), which has a much broader scope, leaving a strange gap between the two.
As for the content of the Guidelines, funds are bucketed into three categories, depending on the type of terms used in their name:
Each of the above-mentioned categories share a common requirement: 80 per cent of the relevant fund’s investments should be used to meet the environmental or social characteristics or sustainable investment objectives (the Threshold) in accordance with the binding elements of the investment strategy disclosed in Annexes II and III of Commission Delegated Regulation (EU) 2022/1288, which supplements SFDR (the SFDR Level 2).
In addition, if a fund belongs, or contemplates belonging to, (i) Category 1, it should apply Climate Transition Benchmark (CTB) exclusions6, and (ii) Category 2 and/or 3, it should apply the Paris-aligned Benchmark (PAB) exclusions7, noting that:
It is important to note that if a fund combines terms from Category 1 and Category 2 in its name, the requirements of each these categories apply cumulatively, except for those terms combined with any transition related terms (where only the requirements under Category 1 and 2. above apply).
The Guidelines recommend that NCAs consider the above-mentioned rules throughout the life of a fund (with investors being able to verify this information through the periodic disclosures provided in accordance with the SFDR Level 2), and that a temporary deviation from the applicable thresholds/conditions, if the said deviation is not due to a deliberate choice of the asset manager, should be treated as a passive breach and corrected in the best interests of investors. Each NCA will have to define what they consider a passive breach in light of the foregoing.
The Guidelines also give examples of what NCAs should consider (subject to the relevant circumstances) as warranting further investigation and a supervisory dialogue with the relevant fund manager, such as:
The Guidelines will apply three months after the date of their publication on ESMA’s website in all EU official languages. As from this publication date (i) a two-month period will open for NCAs to tell ESMA whether or not they will comply with the Guidelines and (ii) the Guidelines will apply three months after such publication date. Managers of new funds would be expected to comply with the Guidelines in respect of those funds from the date of application. Managers of funds existing before the date of application of the Guidelines should comply with respect to those funds six months after the application date.
Finally, it should be kept in mind that the ESMA highlights in the Guidelines that “it should be noted that these guidelines have been designed in light of the current legislative framework. ESMA will review the guidelines, if necessary, in case of any update of the relevant legislation”.
Fund managers should assess the scope of the Guidelines. Those managers that are within scope of the Guidelines then need to identify those funds containing ESG or sustainability related terms in their names. Having identified those funds, fund managers then need to change the name of the fund to bring it outside the Guidelines or review the fund’s investment strategy and legal documentation to ensure compliance with the Guidelines.
Fund managers within scope also need to be mindful of the relevant deadlines:
CTB exclusions are those contained in Article 12(1)(a)-(c) of the Benchmark Regulation.
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