MiFID II Article 44 & fair, clear, non-misleading: a practical checklist

What Article 44 actually says

Article 44 of the MiFID II Delegated Regulation (Commission Delegated Regulation (EU) 2017/565) establishes the overarching standard for all investment firm communications with clients and potential clients. The core requirement is three words:

But what does this actually mean in practice? ESMA has issued extensive guidance through Q&As and guidelines that operationalise these three terms. This checklist translates that guidance into concrete questions your team should answer before publishing any investor communication.

The pre-publication checklist

✅ Identification & labelling

• Is the communication clearly identifiable as a marketing communication (not research or advice)?
• Is the name of the investment firm clearly stated?
• Does the communication avoid being presented in a way that could be confused with regulatory documents (factsheets, KIIDs)?

✅ Fairness

• Are all material risks presented with at least equal prominence to potential benefits?
• Is the target audience clearly defined, and is the content appropriate for that audience?
• Are costs and charges disclosed, or is it clear where to find them?
• Is there no selective omission of negative information?

✅ Clarity

• Is the language appropriate for the intended audience (retail vs. professional)?
• Are technical terms explained or avoided?
• Is the font size legible and consistent with print standards?
• Does the layout give appropriate visual prominence to risk warnings and disclaimers?
• Are abbreviations spelled out on first use?

✅ Non-misleading

• Does the communication avoid language implying guaranteed outcomes (e.g., "safe", "risk-free", "assured returns")?
• Are any comparisons made on a like-for-like basis with sources cited?
• Are statistics and claims verifiable and correctly attributed?
• Does performance data cover the required minimum period (typically 5 years or since inception)?
• Is past performance accompanied by the standard caveat?
• Are simulated or projected performance figures clearly identified as such?
• Do any references to tax treatment note that this depends on individual circumstances?

✅ Consistency

• Is the communication consistent with the prospectus, KIID/KID, and other pre-contractual documents?
• Are any claims about the fund's strategy, risk profile, or fees consistent with regulatory filings?
• Have you verified that no information has become outdated since the last review?

High-risk phrases to flag automatically

These phrases should trigger immediate compliance review:

Automate the checklist with AI

Running this checklist manually for every LinkedIn post, newsletter, and whitepaper is simply not scalable for an active marketing team. Komplync automates every item on this list — flagging violations in under 10 seconds with the specific Article 44 provision and a suggested fix.