Amendments to Delegated Regulation (EU) 2017/565
Article 1
Delegated Regulation (EU) 2017/565 is amended as follows: (1) in Article 2, the following points (7), (8) and (9) are added: ‘(7) “sustainability preferences” means a client’s or potential client’s choice as to whether and, if so, to what extent, one or more of the following financial instruments shall be integrated into his or her investment: (a) a financial instrument for which the client or potential client determines that a minimum proportion shall be invested in environmentally sustainable investments as defined in Article 2, point (1), of Regulation (EU) 2020/852 of the European Parliament and of the Council ( *1 ) ; (b) a financial instrument for which the client or potential client determines that a minimum proportion shall be invested in sustainable investments as defined in Article 2, point (17), of Regulation (EU) 2019/2088 of the European Parliament and of the Council ( *2 ) ; (c) a financial instrument that considers principal adverse impacts on sustainability factors where qualitative or quantitative elements demonstrating that consideration are determined by the client or potential client; (8) “sustainability factors” means sustainability factors as defined in Article 2, point (24), of Regulation (EU) 2019/2088; (9) “sustainability risks” means sustainability risks as defined in Article 2, point (22), of Regulation (EU) 2019/2088. ( *1 ) Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 ( OJ L 198, 22.6.2020, p. 13 )." ( *2 ) Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability-related disclosures in the financial services sector ( OJ L 317, 9.12.2019, p. 1 ).’;" (2) in Article 21, paragraph 1 is amended as follows: (a) the second subparagraph is replaced by the following: ‘Investment firms shall take into account sustainability risks when complying with the requirements set out in this paragraph.’; (b) the following subparagraph is added: ‘When complying with the requirements set out in this paragraph, investment firms shall take into account the nature, scale and complexity of the business of the firm, and the nature and range of investment services and activities undertaken in the course of that business.’; (3) in Article 23(1), point (a) is replaced by the following: ‘(a) establish, implement and maintain adequate risk management policies and procedures which identify the risks relating to the firm’s activities, processes and systems, and, where appropriate, set the level of risk tolerated by the firm. In doing so, investment firms shall take into account sustainability risks;’; (4) Article 33 is replaced by the following: ‘Article 33 Conflicts of interest potentially detrimental to a client (Article 16(3) and Article 23 of Directive 2014/65/EU) For the purposes of identifying the types of conflict of interest that arise in the course of providing investment and ancillary services or a combination thereof and whose existence may damage the interests of a client, including his or her sustainability preferences, investment firms shall take into account, by way of minimum criteria, whether the investment firm or a relevant person, or a person directly or indirectly linked by control to the firm, is in any of the following situations, whether as a result of providing investment or ancillary services or investment activities or otherwise: (a) the firm or that person is likely to make a financial gain, or avoid a financial loss, at the expense of the client; (b) the firm or that person has an interest in the outcome of a service provided to the client or of a transaction carried out on behalf of the client, which is distinct from the client’s interest in that outcome; (c) the firm or that person has a financial or other incentive to favour the interest of another client or group of clients over the interests of the client; (d) the firm or that person carries on the same business as the client; (e) the firm or that person receives or will receive from a person other than the client an inducement in relation to a service provided to the client, in the form of monetary or non-monetary benefits or services.’; (5) in Article 52, paragraph 3 is replaced by the following: ‘3. Investment firms shall provide a description of: (a) the types of financial instruments considered; (b) the range of financial instruments and providers, analysed per each type of instrument according to the scope of the service; (c) where relevant, the sustainability factors taken into consideration in the selection process of financial instruments; (d) when providing independent advice, how the service provided satisfies the conditions for the provision of investment advice on an independent basis, and the factors taken into consideration in the selection process used by the investment firm to recommend financial instruments, including risks, costs and complexity of the financial instruments.’; (6) Article 54 is amended as follows: (a) in paragraph 2, point (a) is replaced by the following: ‘(a) it meets the investment objectives of the client in question, including the client’s risk tolerance and any sustainability preferences;’; (b) paragraph 5 is replaced by the following: ‘5. The information about the investment objectives of the client or potential client shall include, where relevant, information about the length of time for which the client wishes to hold the investment, his or her preferences regarding risk taking, his or her risk tolerance, the purpose of the investment and in addition his or her sustainability preferences.’; (c) paragraph 9 is replaced by the following: ‘9. Investment firms shall have in place, and be able to demonstrate that they have in place, adequate policies and procedures to ensure that they understand the nature features, including costs and risks of investment services and financial instruments selected for their clients, including any sustainability factors, and that they assess, while taking into account cost and complexity, whether equivalent investment services or financial instruments can meet their client’s profile.’; (d) paragraph 10 is replaced by the following: ‘10. When providing the investment service of investment advice or portfolio management, an investment firm shall not recommend or decide to trade where none of the services or instruments are suitable for the client. An investment firm shall not recommend financial instruments or decide to trade such instruments as meeting a client’s or potential client’s sustainability preferences when those financial instruments do not do meet those preferences. The investment firm shall explain to the client or potential clients the reasons for not doing so and keep records of those reasons. Where no financial instrument meets the sustainability preferences of the client or potential client, and the client decides to adapt his or her sustainability preferences, the investment firm shall keep records of the decision of the client, including the reasons for that decision.’; (e) in paragraph 12, the first subparagraph is replaced by the following: ‘12. When providing investment advice, investment firms shall provide a report to the retail client that includes an outline of the advice given and that explains how the recommendation provided is suitable for the retail client, including how the recommendation meets the client’s investment objectives, his or her personal circumstances with reference to the investment term required, the client’s knowledge and experience, the client’s attitude to risk his or her capacity to sustain losses and his or her sustainability preferences.’; (f) in paragraph 13 a new subparagraph is added: ‘The requirements to meet the sustainability preferences of clients or potential clients, where relevant, shall not alter the conditions laid down in the first subparagraph.’.