The issues concerning proportionality have not yet been finally resolved. In fact, ESMA has written to the European Commission, European Council and European Parliament on the proportionality principle and remuneration rules in the financial sector and suggested that further legal clarity is needed. ESMA decided did not include in the final UCITS Remuneration Guidelines any guidance on the possibility not to apply certain specific requirements on the pay-out process set out in the UCITS Directive though it did not rule this out. In its letter to the EU Commission ESMA stated that it "believes that it would be inappropriate for the following fund managers to be subject in all circumstances to the requirements on the pay-out process:

  1. smaller fund managers (in terms of balance sheet or size of assets under management);
  2. fund managers with simpler internal organisation or nature of activities; or
  3. fund managers whose scope and complexity of activities is more limited.

ESMA also considers that it would be disproportionate to apply the requirements to relatively small amounts of variable remuneration and to apply certain requirements to certain staff when this would not result in an effective alignment of interests between the staff and the investors in the funds."