IRELAND Law and Practice Contributed by: Niall Esler, Shane Martin, James O’Doherty and Laura Whitson, Walkers
2.15 Financial Action Task Force Standards
ern the access of third-country firms to these client types. MiCAR MiCAR also provides for a reverse solicitation exemption for the provision of CASP services by third-country firms to EU clients. In Decem - ber 2024, ESMA published its final report on the guidelines on reverse solicitation under MiCAR, providing a non-exhaustive list of examples of solicitation. It is generally accepted that the reverse solicita - tion rules contained in MiFID II and MiCAR will be interpreted very strictly. 3. Robo-Advisers 3.1 Requirement for Different Business Models Once the activities of a robo-adviser consti - tute MiFID II “investment services” in respect of “financial instruments” , the robo-adviser will require authorisation as a MiFID II investment firm under the MiFID Regulations, unless an exemption applies. The MiFID II investment services most likely to be triggered by robo-adviser activity are portfolio management and/or the provision of investment advice. MiFID II financial instruments include: • transferable securities; • units in collective investment undertakings; • certain options, futures, swaps and other derivatives; and • emissions allowances. The MiFID Regulations requirements in relation to suitability assessments will also affect robo- advisers, and certain of the ESMA Guidelines
Ireland has been a member of the Financial Action Task Force (FATF) since 1991. The AML and sanctions rules in Ireland closely follow the laws issued by the EU, which in turn are heavily influenced by the FATF standards. 2.16 Reverse Solicitation The legislative framework under MiFID II and MiCAR provides for a reverse solicitation regime. MiFID II Under the MiFID Regulations, a third-country firm, as defined, will generally need to establish a branch in Ireland and obtain prior authorisation from the Central Bank before providing invest - ment services or activities to retail clients and opted-up professional clients. However, there is an exemption where retail clients or opted- up professional clients initiate the provision of an investment service by a third-country firm, at their own exclusive initiative. Where a third- country firm solicits clients or potential clients in the EU, including through an entity acting on its behalf or having close links with it, it is not deemed a service provided at the own exclusive initiative of the client. Reverse solicitation does not entitle the third-country firm to market new categories of investment products or investment services to that individual. The Markets in Financial Instruments Regulation (MiFIR) requires third-country firms that deal with certain “per se” professional clients or eligible counterparties to register with ESMA, unless the service was provided at the exclusive initiative of the client. The registration requirement only applies following the adoption of an equivalence decision by the European Commission and is not currently in force, as no equivalency determi - nations yet exist. As a result, national laws gov -
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