MiFID II post-COVID: what Directive 2021/338 corrects and how it affects your investment company

Key data

If your company operates under MiFID II in Spain or any EU Member State, this regulatory correction directly affects you. The Directive (EU) 2021/338 introduced regulatory relief for investment companies in the context of post-COVID recovery, flexibilizing obligations that many entities had already adapted in their internal procedures. The corrigendum CELEX:32021L0338R(02), published on 3 September 2026, corrects material errors in that text, which may invalidate transpositions made on the erroneous version.

The impact is not minor: if your compliance or operational procedures were based on the original text with errors, you must review whether the interpretation you applied remains valid.

What does this regulation establish?

Directive 2021/338 modified MiFID II (Directive 2014/65/EU) in three specific blocks, in addition to adjusting the application of banking directives to investment companies. The corrigendum corrects material errors in that text to ensure correct transposition and interpretation by Member States.

In practical terms, Directive 2021/338 was a legislative response to the COVID-19 crisis: the European legislator understood that investment companies needed less regulatory friction to contribute to economic recovery. The corrigendum does not change that philosophy, but it does ensure that the legal text is technically correct so that Member States can transpose it without ambiguities.

Economic and operational impact

The direct economic impact of a corrigendum is not measured in published sanction figures, but in cost of internal review and adaptation. Entities that transposed Directive 2021/338 based on the original text with errors must now:

• Review their regulatory compliance manuals in the three affected areas.
• Verify whether contracts or client information documentation reflect the correct text.
• Check that their product governance policies align with the corrected version.
• Review the position limits applied in commodity derivatives.

The operational risk is especially relevant for entities operating in several Member States: if each jurisdiction transposed the text with errors differently, there may be inconsistencies in application that the corrigendum now requires to be harmonized.

From the perspective of supervision, the CNMV in Spain and equivalent supervisors in other Member States can use the corrected text as a reference in future inspections, making it essential to update internal documentation.

Who does it affect?

• Investment service companies (ISCs) authorized under MiFID II in Spain and the EU.
• Investment fund managers that provide investment services and are subject to MiFID II.
• Credit institutions that provide investment services and are subject to Directives 2013/36/EU and (EU) 2019/878.
• Companies with positions in commodity derivatives subject to position limits under MiFID II.
• Compliance and legal departments of any financial entity that has adapted its procedures to Directive 2021/338.
• Regulatory advisors and consultants who advise financial entities on MiFID II.

Practical example

Imagine a Spanish asset manager that, following the publication of Directive 2021/338 in February 2021, updated its product governance policy and client information documentation to take advantage of post-COVID flexibilities. It did so based on the original text published in OJ L 68 of 26.2.2021.

With the publication of this corrigendum, the compliance department must now:

1. Compare the original text of Directive 2021/338 with the text corrected by corrigendum CELEX:32021L0338R(02).
2. Identify in which specific articles material corrections were introduced that affect its client information procedures or product governance.
3. Update internal documentation and client contracts if the correction alters the interpretation applied.
4. Document the review process to demonstrate diligence to the CNMV in case of inspection.

This process, although it does not involve a direct regulatory cost in the form of a fee or predefined sanction, can entail hours of legal and compliance work that in medium-sized entities translates into relevant internal costs or external advisory costs.

What should companies do now?

1. Locate the corrected text: Access corrigendum CELEX:32021L0338R(02) on EUR-Lex and compare it with the original text of Directive 2021/338 (OJ L 68, 26.2.2021) to identify exactly which articles were corrected.
2. Audit internal transposition: Review whether your client information procedures, product governance and position limits in commodity derivatives were based on the text with errors or the corrected one.
3. Update documentation: If there are discrepancies, update compliance manuals, client contracts and internal policies to reflect the corrected text.
4. Verify with local supervisor: Check whether the CNMV (in Spain) or another national supervisor has issued criteria on the transposition of the corrected version and adapt your position to those criteria.
5. Document the process: Keep written record of the review carried out and the conclusions reached. This is key to demonstrating diligence in a potential supervisory inspection.

Official source

Consult complete regulation on official source

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific decisions, consult a qualified professional. Source: https://eur-lex.europa.eu/./legal-content/AUTO/?uri=CELEX:32021L0338R(02)