NOMOX

ESMA_QA_2800

ESMA_QA_2800

Status: ✅ Answer Published

Link to ESMA Q&A tool: https://www.esma.europa.eu/publications-data/questions-answers/2800

Regulatory Context

Regulation : MIF2

Level 1 Regulation: Directive 2014/65/EU - Markets in Financial Instruments Directive (MiFID II)

Level 2 Regulation: Regulation 2017/565 - MiFID II Delegated Regulation

Level 3 Regulation: No information available

Topic: Suitability

Subject Matter: Personal recommendation and suitability statement: documentation nature and staff attribution in split/automated processes

Question

Submission Date: 10 March 2026

Under MiFID II, investment advice is defined as a personal recommendation to a client in relation to transactions in financial instruments. In practice, the personal recommendation, the suitability assessment, the documentation and the technical generation/transmission of the suitability statement may be performed by different persons and/or partly automated systems.

Could ESMA clarify the following points:

  1. For determining whether and by whom investment advice was provided, is it primarily relevant who gave/communicated the personal recommendation to the client, rather than who merely prepared/generated/transmitted the suitability statement through IT systems?

  2. Should the suitability statement under MiFID II / Delegated Regulation (EU) 2017/565 be understood as documentation and rationale of a recommendation that has already been made, rather than as a constitutive element of “investment advice”?

  3. Is it necessary, for the attribution of investment advice to a specific staff member, that the same staff member is technically able to create/approve/transmit the suitability statement, or can these steps be separated without changing the attribution of who “advised”?

ESMA Answer

Answer Date: 31-03-2026

Dear Sir,   Thank you for contacting ESMA. The selection of questions to be developed into policy Q&As is done according to a number of criteria, which include the following:

Type of stakeholder: Questions received from investors’ and regulated firms’ associations, will be prioritised over questions from individual firms. Level of public attention: Topics receiving a higher number of questions will have a higher priority. Relevance of the issue: Questions addressing matters with high market impact, important legal risks and significant cross-border effects will have a higher priority.

We would like to inform you that your suggested questions do not appear to be amongst the ones considered of higher priority, at least at this stage. This means that, in view of the number of questions received by ESMA, we are unable to provide you with any further feedback to your question, for the moment.  We thank you for your input and invite you to monitor our website where we will continue to publish further Q&As, and other forms of guidance, with the purpose of ensuring the consistent and effective day-to-day application of Union law within ESMA’s remit.  Kind regards,   ESMA

This document was automatically extracted from the ESMA EMIR Q&A database.