Short answer
Under MiFID II, investment advice is a personal recommendation to a client or potential client about a transaction in one or more financial instruments. A message can become personal advice when it is presented as suitable for the recipient or based on that person's circumstances—for example, risk answers, portfolio holdings, age, income or stated objectives. Calling it “education”, adding a disclaimer, or delivering it through an app does not change its substance.
A post issued exclusively to the public is not a MiFID personal recommendation. It may still be a public investment recommendation under the Market Abuse Regulation (MAR), requiring objective presentation and disclosure of interests and conflicts. False or manipulative content may create more serious market-abuse exposure.
An authorised firm promoting investments must ensure its information and marketing are fair, clear and not misleading, and clearly identifiable as marketing. If its tool recommends a product or selects a portfolio for a person, suitability duties apply. The investment firm remains responsible when an algorithm produces the recommendation or trade.
The key test is personalisation, not the channel
MiFID II defines investment advice as providing personal recommendations to a client, on request or at the firm's initiative, concerning transactions in financial instruments. Delegated Regulation 2017/565 makes the boundary operational. A recommendation is personal where it is made to a person as an investor and:
is “presented as suitable for that person” or is based on a consideration of that person's circumstances. —
It must recommend buying, selling, subscribing for, exchanging, redeeming, holding or underwriting a particular financial instrument, or exercising a right attached to one. A recommendation issued exclusively to the public is not personal.
The same sentence can therefore have a different classification in a public post and a private interaction. “These shares look undervalued” posted to all followers may be a MAR investment recommendation. “Given the retirement horizon and losses you told me you can bear, buy these shares” sent privately is much closer to MiFID advice.
Internet delivery does not make a recommendation public. A personalised email, direct message, chatbot output or logged-in dashboard can be advice even if generated at scale. Conversely, general factual information, product descriptions, market news or diversified educational examples do not automatically become advice if they do not recommend a specific transaction for the recipient.
The Court of Justice applied the same functional test in Genil 48 and Comercial Hostelera de Grandes Vinos (C-604/11) under MiFID I. It held that classification did not turn on the type of instrument but on how it was offered: a swap recommendation was investment advice if addressed to the client as investor, presented as suitable or based on that client's circumstances, and not made only through public or distribution channels. MiFID II and Article 9 of Regulation 2017/565 retain that personal-recommendation test. The case does not decide whether every online message is advice; the actual presentation and personalisation still require factual assessment.
Advice is an authorised investment service
Providing investment advice professionally is an investment service under MiFID II. The provider must assess whether it requires investment-firm authorisation or can rely on a specific exclusion or national regime. The analysis turns on the activity actually performed, not whether the provider calls itself a creator, coach, software company or introducer.
Authorisation brings organisational and conduct duties. The firm must act honestly, fairly and professionally in the client's best interests, manage conflicts, understand products and target markets, disclose costs and explain whether advice is independent, how broad the product range is, and whether suitability will be reviewed periodically.
A person who only introduces a prospective customer without recommending an instrument may be outside investment advice, but taking orders, arranging transactions or acting as a tied agent raises separate MiFID questions. Compensation from an issuer, broker or platform strengthens the need to examine agency, inducements, conflicts and marketing responsibility.
Suitability follows personal advice or portfolio management
When giving investment advice or managing a portfolio, a firm must obtain enough information about the client's:
- knowledge and experience relevant to the product or service;
- financial situation, including ability to bear losses; and
- investment objectives, including risk tolerance.
The purpose is to recommend services and instruments suitable for that client. For retail advice, the firm must provide a suitability statement in a durable medium explaining the advice and how it meets the client's preferences, objectives and other characteristics.
This is more demanding than appropriateness, which generally asks whether a client has enough knowledge and experience for certain non-advised services. Execution-only treatment is available only under defined conditions, including client initiative and eligible non-complex instruments. A firm cannot present a tailored choice as advice and then relabel the resulting order “execution only” to avoid suitability.
Client questionnaires are evidence-gathering tools, not a mechanical defence. Firms must take reasonable steps to ensure information is reliable, questions are understandable and profiling tools are fit for purpose. Contradictory answers, stale circumstances or implausible risk tolerance require follow-up.
Robo-advice has no technology exemption
Automated portfolio builders often cross the advice line by collecting personal data, mapping the customer to a risk profile and proposing particular funds, securities or allocations. If the system also decides trades under a mandate, it may provide portfolio management.
EU law is explicit:
When advice or portfolio management is automated or semi-automated, responsibility for suitability “shall not be reduced by the use of an electronic system”. —
The firm should govern questionnaire logic, scoring, product universe, constraints, data quality, overrides, testing and monitoring. It must identify cases the tool cannot assess safely rather than force every user into a model portfolio. Human review does not cure a systematically defective model, and automation does not transfer responsibility to the software vendor.
Marketing by an investment firm remains regulated
Not every product promotion is advice, but MiFID conduct standards still apply to firm communications:
“All information, including marketing communications,” addressed to clients or potential clients must be “fair, clear and not misleading.” —
Marketing must be clearly identifiable. Benefits should be presented consistently with risks, comparisons should be meaningful, and costs or limitations should not be hidden behind a headline return. The firm remains concerned with communications made on its behalf, including paid creator campaigns and affiliate content.
A generic campaign can move toward advice when a click-through asks about personal finances and then recommends a named instrument. The entire journey matters; a public first screen does not prevent the later personalised stage from being regulated advice.
Finfluencer posts may be MAR investment recommendations
MAR uses a different category. An investment recommendation includes public or distribution-channel information explicitly or implicitly recommending an investment strategy regarding financial instruments or issuers, including opinions about present or future value or price.
Article 20 requires producers and disseminators to take reasonable care that the information is objectively presented and to disclose interests or conflicts. Delegated Regulation 2016/958 specifies identification, fact-versus-opinion, source, methodology, date/time and conflict disclosures, with additional duties for specified professionals and experts.
ESMA and national regulators have warned that social-media videos, posts and portfolio ideas can qualify even when expressed in informal language. That warning is supervisory guidance; the binding rules are MAR and the delegated regulation.
A public post can therefore be outside MiFID personal advice yet inside MAR's recommendation regime. Payment, holdings, short positions, issuer relationships or timing may need prominent disclosure. A vague “not financial advice” label does not replace the required information.
Manipulation and inside information are separate risks
Conflict disclosure does not make false content lawful. Posting misleading information to move a price, coordinating promotional activity while selling into demand, or concealing a paid campaign may engage MAR's market-manipulation prohibitions depending on the facts.
An employee, adviser or creator who receives inside information also faces insider-dealing and unlawful-disclosure rules. Selectively sharing confidential price-sensitive information with followers is not transformed into lawful analysis because it appears in a recommendation.
The safest classification exercise therefore asks three separate questions:
- Is this a personal recommendation and regulated investment service under MiFID II?
- Is it public information recommending an investment strategy under MAR?
- Does its content, funding or timing create manipulation, inside-information or advertising concerns?
More than one can apply.
A practical content and product checklist
- Identify whether the subject is a MiFID financial instrument; other products may fall under MiCA, insurance or national law.
- Map the audience: public feed, closed group, segmented campaign, private message or logged-in customer.
- Record what personal circumstances affect the output.
- Separate facts, opinions, forecasts and recommendations.
- Disclose payment, holdings, issuer relationships and other conflicts prominently.
- Do not rely on “education” or “not advice” labels where the substance recommends a personal transaction.
- For automated tools, validate data, scoring, product mapping, suitability logic and failure paths.
- Preserve approvals, versions and communications sufficient to show the rule applied at the time.
Conclusion
EU law draws the main boundary around the function of the communication. A recommendation becomes MiFID investment advice when it is personal, concerns a transaction in a financial instrument and is presented as suitable or based on the recipient's circumstances. Suitability and reporting duties then follow, whether a human or algorithm generates it.
Public finfluencer or promotional content is not automatically personal advice, but it can be a MAR investment recommendation and must meet presentation and conflict rules. Firms must also keep all client marketing fair, clear, not misleading and identifiable. Audience, personalisation and decision effect matter more than format or disclaimer.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.